^amana^ 


■iii^^MAiWiiii 


THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


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in  2008  with  funding  from 

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ESTEE'S 
PLEADINGS,  PRACTICE, 

AND  FORMS, 


ADAPTED  TO 


ACTIONS  AND  SPECIAL  PROCEEDINGS 


CODES  OF   OIYIL  PROOEDUEE. 


BY 

MORRIS  M.  ESTEE, 

COUNSELOR-AT-LAW. 


FOURTH    EDITION: 

REVISED   AND    ENLARGED    BY 

CHARLES  T.    BOONE, 

COUNSELOR-AT-LAW. 


IN  THREE  VOLUMES. 
VOL.  I. 


SAN  FRANCISCO: 

BANCROFT-WHITNEY  CO., 

Law  I'cBLisnERs  ANn  Law  Booksellers. 


Entered  according  to  Act  of  Congress,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  sixty-nine, 

By  morris  M.    ESTEE, 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States,  for 

the  District  of  California. 

Entered  according  to  Act  of  Congress,  in  the  year  1879, 

By  a.  L.  BANCROFT  &  CO., 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 

Entered  according  to  Act  of  Congress,  in  the  year  1885, 

By  a.  L.  BANCROFT  &  CO., 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 

Entered  according  to  Act  of  Congress,  in  the  year  1897, 

By  BANCROFT-WHITNEY  CO., 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


PREFACE  TO  FOURTH  EDITION 


More  than  a  dozen  years  have  elai^sed  since  the  issue  of  the 
third  edition  of  Estee's  Pleading,  Practice,  and  Forms.  During 
that  period  of  time  Codes  of  Procedure  in  the  several  stales 
have  undergone  many  material  alterations  by  way  of  amend- 
ments, and  a  vast  number  of  judicial  decisions  have  accumulated 
upon  the  subject  of  Code  pleading  and  practice.  And  more 
especially  is  this  true  as  regards  the  Pacific  states  and  territories. 
In  the  preparation  of  the  present  edition  of  this  standard  work, 
resort  has  been  had  to  the  decisions  of  the  highest  courts  of  the 
Pacific  coast  states  in  connection  with  the  latest  Code  amend- 
ments, and  an  effort  has  been  made  to  include  everything  that 
would  add  to  the  value  and  usefulness  of  the  work.  Leading 
decisions  of  the  highest  courts  of  other  Code  states  have  also 
been  fully  given  in  order  to  present  a  complete  view  of  Code 
pleading  and  practice  in  the  light  of  the  latest  judicial  utter- 
ances. The  plan  of  the  third  or  preceding  edition  has  not  been 
materially  changed.  New  matter  has  been  added  in  the  way 
of  additional  sections,  or  in  extended  notes  to  the  text.  The 
text  itself  lias  not  been  changed  except  when  necessary  by 
changes  made  in  the  law.  The  forms  have  been  revised  in  ac- 
cord with  the  latest  enactments  and  decisions.  Where  cases 
cited  are  re-reported  in  American  Decisions,  American  Reports, 
or  Amoricnn  f^\Mo  T?eports,  doublo  references  are  given.  The 
additional  matter  has  necessitated  the  making  of  a  new  index 
to  the  whole  work. 

C.  T.  B. 
San  Fran-cisco,  September  1,  1897. 


U^^^^ 


PREFACE  TO  THIRD  EDITION. 


In  the  preparation  of  the  third  edition  ol  this  standard  worlv, 
vhile  the  general  plan  of  the  two  former  editions  has  been  mainly 
followed,  certain  changes  have  been  made  in  arrangement  of 
the  several  subject-matters  discussed,  whenever  a  change  seemed 
desirable.  An  effort  has  also  been  made  to  enlarge  the  original 
scope  of  the  work,  and  enhance  its  usefulness,  by  incorporating 
in  it  a  large  number  of  new  forms,  adapted  to  the  needs  of  the 
profession  in  all  the  Code  states  and  territories.  The  forms  so 
added  have  been  carefully  prepared,  and  have  uniformly  been 
approved  by  the  appellate  courts.  •  Whenever  necessary  the 
forms  contained  in  the  previous  editions  have  been  revised  so  as 
to  harmonize  with  the  most  recent  decisions.  Many  new  and 
recent  authorities  have  also  been  examined  and  cited,  from  all 
the  states  which  have  adopted  the  reform  proced\ire:  and  when- 
ever a  change  ha?  been  made  in  the  rules  and  doctrines  con- 
tained in  the  previous  editions,  either  liy  judicial  decision  or 
legislative  enactment,  the  same  has  been  noted,  and  the  text 
modified  accordingly.  All  the  citations  have  been  carefullv 
compared  and  verified  by  reference  to  the  original  reports,  and 
it  is  confidently  hoped  that  they  will  be  found  substantially 
correct.  The  citations  have  boon  plncnd  in  notes  at  the  bottom 
of  the  pages,  and  not  embodifd  in  the  text  as  in  previous 
editions. 

C.  P.  POMET^OY. 

San  FnANTisro,  October,  ^9'M. 


PREFACE  TO  SECONB  EDITION. 


The  preface  to  the  original  work  states  all  that  need  be  said  as 
to  its  plan  and  scope.  The  great  favor  the  work  has  met  with 
from  the  profession,  as  well  as  its  intrinsic  merits,  which  ai-e 
apparent  without  reference  to  its  popularity,  prohibited  any 
change  in  its  plan  in  this  revision. 

Considerable  new  matter  has  been  introduced,  especially  in 
those  parts  relating  to  parties,  and  to  pleadings  in  general;  wliilo 
new  notes  and  new  citations  of  authorities  have  been  added 
throughout  the  work  wherever  it  seemed  necessary  or  desirable. 

The  original  citations  have  also  been  carefully  examined,  and 
the  errors  incident  to  a  new  work  corrected.  It  is  impracti- 
cable, in  a  work  of  this  character,  to  give  a  statement  of  the  point 
decided  in  each  case  referred  to;  but  it  is  believed  that  each 
citation  will  be  found  to  sustain  directly,  or  illustrate,  the  point 
or  subject  to  which  it  is  cited. 

The  forms  have  also  been  carefully  examined  and,  so  far  as 
necessary,  corrected;  and  in  tlie  second  aiul  third  volumes  will 
be  found  many  forms  not  contained  in  the  original  work. 

At  the  time  the  original  work  was  written,  the  Practice  Act 
was  in  force  in  California  —  since  that  time  the  Civil  Code  and 
the  Code  of  Civil  Procedure  have  been  adopted.  So  far  as 
these  Codes  have  changed  the  law  or  practice  in  that  state  upon 
suV)jects  treated  of,  such  changes  have  been  stated,  or  roforoncc 
made  thereto;  and  wherever  a  Code  is  cited  witlidut  giving  flio 
name  of  the  state,  the  Codes  of  California  are  intended. 

While  the  Code  of  each  state  having  one  differs  in  many 
particulars  from  thai  of  every  other,  yet  it  will  be  found  thai  nil 
are  based  upon  common  jirinciples,  and  practitioners  in  olhir 
states  will  readily  adapt  this  work  to  the  pocnliarities  of  their 
own  Codf:  and  in  states  not  Inning  a  {'oilc,  the  profession  will 
fmd  it  of  great  value,  not  only  because  of  its  numerous  citations 
upon  all  leading  subjects,  but  because  it  has  now  become  neces- 


vlii  I'KKKACE   TO   SECOND    EDITION. 

isary  for  eotnnuMi-law  practitiiniors  to  become  I'ainiliar  with  Code 
pleading  and  jii-aetiee. 

In  a  work  covering  so  many  branches  of  tlio  hnv,  absohite  free- 
dom from  errors  should  not  be  expected;  but  it  is  hoped  and 
believed  that  its  utility  to  the  general  practitioner  will  more 
than  atone  for  its  errors, 

San  Francisco,  July  1,  1878, 


PREFACE  TO  FIRST  EDITION. 


In  the  preparation  of  this  work  my  object  has  been  to  pre- 
sent to  the  profession  the  chief  requisition  of  good  pleading, 
with  forms  adapted  to  the  modern  practice,  accompanied  by 
numerous  authorities  sustaining  them. 

With  this  object  in  view,  I  have  commenced  at  the  first 
inquiry  made  by  the  practitioner,  in  bringing  or  defending  an 
action,  and  have  advanced  witli  him  step  by  step  in  tlie  prose- 
cution or  defense  of  the  same;  giving,  as  far  a.<  j)ossible  within 
the  scope  of  this  work,  tlie  law  relative  to  the  plcadi)igs  and 
practice,  with  the  fonns  necessary  for  use,  to  the  final  disposi- 
tion of  the  cause. 

Althougli  the  forms  given  are  specially  adapted  to  the  prac- 
tice in  California,  Nevada  and  Oregon,  and  the  territories  on 
the  Pacific  slope,  yet,  with  rare  exceptions,  they  are  equally 
applicable  in  New  York  and  nearly  all  of  the  other  states  of 
the  Union. 

The  notes  under  the  forms  have  been  arranged  alphabetically, 
with  side  heads  to  each,  which  will  be  found  to  be  an  index  to 
their  contents,  and  a  majority  if  not  all  of  the  recent  decisions, 
not  only  of  the  Sii])reme  Courts  of  the  Pacific  states,  but  of  the 
various  courts  of  the  other  states  of  the  Union,  and  of  England, 
have  been  consulted,  and  brief  extracts  or  references  to  them 
appear  under  the  appropriate  headings. 

The  general  principles  discnssed  in  tlie  first  part  of  this  work, 
as  well  as  the  general  propositions  ;it  the  commencement  of  the 
leading  subjects,  Coinj)laints,  Summons,  Change  of  Place  of 
Trial,  Domnrrer,  .Answer,  Notices,  '^^otions,  Statement.  New 
Trial,  .Vpppal,  otc,  will,  it  is  believed,  be  a  guide  and  assistance 
at  ear'h  stage  of  the  proceedings. 

The  forms  have  been  carefnlly  iii'njiarcd,  and  in  general  will 
be  found  correct.     ^lany  of  them  have  been  tested  by  the  court3 


X  rKKFA(^E   TO    FIRST    EDITION. 

of  last  resort,  and  their  correctness  sustained,  as  will  be  seen 
h\  rel'erence  to  the  authorities  under  each. 

In  submitting  this  book  to  the  })roi'ession  J  am  not  uncon- 
scious of  the  necessity  of  bespeaking  for  it  a  just,  if  not  a 
charitable  criticism;  and  I  trust  that  its  imperfections,  which 
are  doubtless  many,  will  not  seriously  impair  its  usefulness. 

M.  M.  E. 


TABLE  OF  CONTENTS. 

VOLUME  I. 


PART  FIRST. 

GENERAL  PRINCIPLES. 


CHAPTER.  I. 

REMEDIES. 
§§  1,  2.    Romedies,   boAv  secured. 
§§  3,4.    Actious. 
§§  5-25.  Special    proceedings. 
§  2t).      Provisioual  remedies. 

CHAPTER  11. 
JURISDICTION. 
§§  27,28.    In  general. 

§  29.         At  chambers. 

§  30.  Concurrent  jurisdiction. 

§§  31,  32.    Of   state  courts. 
§§  33-50.    California  courts. 
§§  34-38e.  Supreme  court  jurisdiction. 
§§  31>-49  1.  Superior   and    District   courts. 
§§  50-50b.  Ju.stice's    court. 

CHAPTER  III. 

PLACE   OF   TRIAL. 
§  5L         In  general. 

§  ,52.         'Where  subject-njatter  is  situated. 
§  52a.       Actions  allectiug  lands. 
§  .')3.         Actions   against   counties. 
§  .54.  Wlicrc  cause  of  action   arose. 

§  5.5.         Wliere   defendant    resides. 
5§  5G-94a.  Cliange  of  i)lace  of  trial. 


xii  'rAHi.K  or  conthnts. 

Foriii     1.  §  "'0.  Demand   lor  cliauge. 

'Z.  §  01.  Form  of  uotiee. 

3.  §  (.>3.  Statomont   of  '  ground  —  Not    proper    county    from 

situation  of  subject-matter, 

-1.  §  W.  Not  county  where  cause  of  action  arose, 

5.  §  ()"».  Affidavit   on  ground  of   nonresidence. 

(;.  «)  1)8.  Affidavit   on   ground   of   prejudice. 

7.  S  71.  Affidavit  on  account  of  convenience  of  witnesses. 

8.  S  7r>.  Affidavit  on   account  of  disqualification  of  judge. 

9.  §  82.  Affidavit  resisting  motion  for  change. 

10.  §  85.  Order  denying  motion. 

11.  S  81).  Order  granting  change. 

12.  §  9o.  Order  transferring  cause  to  another  court. 

10.  S  94.  Notice  of  trial  of  ti-ansf erred  action. 

§§  95-123.    Removal  of  causes  from  state  to  federal  courts. 

§  90.    Special  cases. 

§  90a.  Removable    causes— Act    of    1887. 

§  90b.  Party  entitled  to  remove  — Citizenship. 

§  9ec.  The   same  —  Lo<al    prejudice. 

§  9Gd.  The    same  —  Federal    questions. 

§  90e.  The   same  —  Separable   controversy. 

§  9ef.  The  same  —  Time  of  application. 

§  90g.  Who  may  remove  —  Party  defendant. 

§  90h.  Notice    of    application. 

§  9(>i.  "When   removal   is  effected. 

§  90j.  Remand  of   cause. 
Form  14.    §  100.    Entry   of  appearance, 

15.    §  107.    Petition  for  transfer  from  state  to  federal  court. 
10.    §  107a.  The  same  —  On  ground  of  prejudice  or  local   in- 
fluence. 

17.  §  107b.  Affidavit  of  prejudice  or  local  influence. 

18.  §  107c.  Bond  to  accompany  petition. 

19.  §  107d.  Petition   on   ground   of   citizenship. 
§  107e.  Tbe  same. 

§  107f.  Allegation   as   to  citizenship. 

20.  §  110.    Notice  of  motion  for  removal. 

21.  §  117.    Order  to  show  cause. 

22.  §  118.    Order  for  removal. 

23.  §  123.    Wnt  of  certiorari  to  state   court. 

CHAPTEE  IV. 

PARTIES  TO  CIVIL  ACTIONS. 

§  124.  In  general. 

§  125.  In  legal  actions. 

§  120.  In   equitalde   actions. 

§  127.  E(|uital)lc  doctrines   adopted   by  code. 

§  128.  Cause  of  action,   meaning  of. 


TABLE    or    COXTEXTS.  XUi 

CHAPTEE  V. 
PARTIES  PLAINTIFF  —  REAL  PARTY  IN  INTEREST. 

§  130.    Who  is  real  partj-  in  interest. 

§  132.    When  pix)-mise  is  for  benefit  of  third  person. 

CHAPTEE  VI. 
PARTIES  PLAINTIFF  —  ACTIONS  FOUNDED  ON  CONTRACT. 

§  133.  Relation  to  contract,  how  may  arise. 

§  134.  Joinder  of  plaintiffs,  generally. 

§  135.  Must  represent  entire  cause  of  action. 

§  130.  Refusal    of   plaintiffs  to  join. 

§  137.  Where  parties  are  numerous. 

§  138.  Common    interest. 

§  139.  Joint  tenants  and  tenants  in  common. 

§  140.  Joint  owners  of  chattels. 

§  141.  Executors  and  administrators. 

§  142.  Partners. 

§  143.  Mortgaires  and  mechanic  liens. 

§  144.  Principal  and  agent. 

§  14.5.  Promissoiy   notes. 

§  14(>.  Quo  warranto- 

§  147.  Sheriffs. 

§  148.  State  or  Uni-ted  States. 

§  149.  Sureties. 

§  149a.  Miscellaneous   cases. 

CHAPTEE  VII. 

PLAINTIFFS  IN  ACTIONS  ARISING  FROM  TORTS. 

§  lijO.  In  general. 

§  1.51.  For  injuries  to  real  property. 

§  1.52.  Fol'  injuries  to  personal   property. 

§  ir)3.  In  ejectment. 

§  1.54.  For    injuries    to   the    persou. 

§  1.5.5.  Injuries  to  married   women. 

§  1.5().  Injuries  to   child   or   servant. 

§  1.57.  For  seduction. 

CHAPTER  YIII. 
DEFENDANTS   IN   ACTIONS   LECAL   AND   EQUITABLE. 
§  158.    Defendants  jointly   liable. 
§  1.59.    Annulling  patent  lo  land. 
§  100.    Against    assessor.s. 
§   H!l.     Hreacli   of  contract. 
§  102.    Executors  and  administrators. 


IIV  TABLi;    or    CONTENTS. 

§  1G3.  roiielusure  suits. 

§  IW.  Fraud. 

§  IGf).  Ejootiueut. 

§  IIK).  Married  wotuen. 

§  1G7.  Infants. 

§  108.  lufringement  of  patent. 

§  109.  Injunction. 

§  170.  Injuries  caused  by  negligence. 

§  171.  Legacy  diarged  on  land. 

§  172.  Partners. 

§  173.  rrincipal   and   agent. 

§  174.  Trespass. 

§  175.  Trustees. 

§  170.  Persons  severally  liable  on  same  obligation. 

|§  176a,  ITOb.  Joinder. 


PART  SECOND. 

Al^ALYSIS   OF   PLEADINGS. 


CHAPTEE.  I. 
PLEADINGS  IN  GENERAL. 

§  177.  Definitions. 

§  178.  Object  of   pleading  —  The   issue. 

§  179.  Forms  of  action  abolislied. 

§  180.  Legal  and  equitable  rights  preserved. 

§  181.  Legal  and  equitable  relief  granted  in  same  action. 

§  182.  Of   what  pleadings   consist. 

§  183.  Distinction  between  pleadings  and  tBe  action. 

§  184.  Facts  only  to  be  stated. 

§  185.  Ck)nclusions  of  law  not  to  be  alleged. 

§  180.  Anticipation    of    defense. 

§  187.  Facts  independent  of  cause  of  action. 

§  188.  Implications  and  presumptions  of  law. 

189,  190.  Material  averments. 

§  191.  Immaterial,   irrelevant,  and  redundant  matter. 

§  192.  What   facts   should   be   stated. 

§  193.  What  should  be  omitted. 

§  194.  ;Mode  of  stating  facts. 

§  195.  Must  l>e  stated  logically. 

§  190.  Must  be  stated  by  direct  averment. 

§  197.  In  ordinary  and  concise  language. 


TABLE    OF    CONTENTS.  XV 

§  198.  With  sufficient  ceilainty. 

§§  199,  199a.  Pleadings,    liow    construed. 

§  200.  Veritied  pleadings. 

§§  201-204.  Admissions  in  pleadings. 

§  202.  By  demurrer  and  answer. 

§  203.  By  want  of  verification. 

§  204.  Effect    of    admissions. 

§  205.  Variance  and  defects. 

CHAPTER  II. 

FORMAL  PARTS  OF  PLEADINGS. 

§  206.    Of  what  formal  parts  consist. 

§  207.    Formal  parts  of  complaint —Title  of  cause. 

Where  some  parties  are  unknown. 

By  and  against  corporations. 

By  state  on  the  relation  of  individual. 

By  guardian  ad  litem. 

By  assignee  for  creditors. 

By  and  against  national  banks. 

By  an  officer  of  the  state. 

Title  and  commencement. 

By  one  suing  for  himself  and  others. 

Conclusion  of  complaint. 

Form   of   complaint   complete. 

Clerk's  certificate  to  copy  of  complaint. 

Amended    complaint  —  Commencement . 

Defendant's    pleadings  —  Commencement    of    de- 
murrer. 

Answer. 

Commencement    by    defendant    sued    by    wrong 
name. 

By  an  infant. 

By  an  insane  pereon. 

By   husband   and   wife. 

Separate  answer  of  defendant. 

Petitions  —  To   the  coiut. 

Petition   to  a  judge. 

Caption      in      probate     i)roceedings  —  Decedent's 
estate. 

Minor's  estate. 

Insane  person's  estate. 

Caption   in   insolvency   proceedings. 

Caption  on  habeas  corpus. 
■">.*'..    8  2.">8.    (Caption  on  ilisbarnient   of  attorney. 
.")l.     8  2."9.    Caption   of  papers   used    in   (Jllier  courts. 
."».     S  2('i().    Caption    for  justices'   courts. 
r>(i.    8  2<!1.    Older  of  eonrt   in   an  action. 
r>7.    §  2(i2.    Capti(»n,    eommencement    and    conchisiou    of   affi- 
davits. 


Form  25. 

§  207. 

26. 

§  217. 

27. 

§  219. 

28. 

§  221. 

29. 

§  222. 

30. 

§  223. 

31. 

§  224. 

32. 

8  226. 

33. 

§  228. 

M. 

§  230. 

25. 

§  231. 

36. 

§  233. 

'Si. 

§  234. 

38. 

§  235. 

39. 

§  236. 

40. 

8  238. 

41. 

8  24»!. 

42. 

8  247. 

43. 

8  248. 

44. 

§  249. 

45. 

§  2.50. 

46. 

§  251. 

47. 

8  2.52. 

4S. 

8  253. 

49. 

8  2.^.4. 

.'.< ). 

§  2.55. 

.%1. 

8  2.->i'K 

.'2. 

8  2.57. 

XVl  TAISLK    OF    CUNTKMb. 

Form  r>S.    §  -7r>.    Certiticate   c»f   t-lcrU    to   allidavit. 

r>ii.    §  li7(>.    Jurat  wlieu  depoiu'ut  is  blind  or  illiterate. 
UO.    §  277.    Jurat  wliou  deponent  is  a  I'oreiguer. 

CHAPTEli  III. 

VERIFICATION  OF  PLEADINGS. 

§  278.  Pravisions  of  codes. 

§§  279-283.  Coustructiou  of  statute. 

Form  (ll.    §  284.  A'erification  by  sole  plaintiff  or  defendant. 

02.    §  285.  On  Information  and  belief. 

(j3.    §  287.  By  one  of  several  plaintiffs  or  defendants. 

04.    §  289.  By  tMO  parties,  severally. 

65.    §  290.  By   otlicer   of   corporation. 

6(5.    §  293.  By  attorney  or  agent  knowing  facts. 

67.  §  296.  By  agent  when  party  is  absent. 

68.  §  300.  When  absent  plaintiff  is  corporation. 

69.  §  301.  Yeritication  of  petition. 


PART  THIRD. 

PLEADINGS  OF  PLAINTIFF. 


CHAPTER.  I. 

COMPLAINTS  IN  GENERAL, 

First  subdivision  of  complaint. 

Character   and    capacity    averred. 

Action  by  agent. 

Action  by  assignee. 

Action  by  company   or  partnership. 

Action   by   corporation. 

Permission  to  sue. 

Second     subdivision  —  Statement     of     cause     of 
action. 

Wliat  facts  must  be  stated. 

Allegations  on  information  and  belief. 

Joinder  of  causes  of  action. 
§  314a.  Separate  statement  of  cause  of  action. 
315.  315a.  Causes  of  action  which  can  not  be  joined. 
§  316.    Splitting  demands. 
§  317.    Actions  for  debt. 
§  318.    On  contract,  for  breach  of. 
§  319.     Pleading  contract. 
§  319a.  Assumpsit  —  Common   counts. 


§ 

303. 

§§ 

305-310. 

S 

306. 

§ 

307. 

§ 

308. 

§ 

309. 

§ 

310. 

§§ 

311- 

-331. 

§ 

312. 

§ 

313. 

§ 

314. 

TABLE    OF    COXTENTS.  XVii 

§  320.  Aveimeut  of  promise. 

§  321.  Consideratiou,  when  must  be  alleged. 

§  322.  Performance  of  contracts. 

§  323.  Nonijerformance. 

§  324.  Concurrent  acts. 
§§  325,  32oa.  Breach    of   contract 

§  320.  Specutl  damages. 

§  327.  Negligence,  how  pleaded. 

§  328.  Judgments,  how  pleaded. 

§§  329,330.  Statutes,    how    pleaded. 

§  331.  Statute  of  Limitations,  how  pleaded. 

§  332.  Third    subdivision  —  Demand    for    relief. 


FORMS  OF  COMPLAINTS. 


SUBDIVISION  FIEST. 

BY   AND   AGAINST   PARTICULAR   PERSONS,  INDIVIDUALLY,  AND   IN   REPRESENTA- 
TIVE CHARACTER  AND  OFFICIAL  CAPACITY. 


CHAPTER.  I. 

ASSIGNEES  AND  DEVISEES. 

Form  70.  §  333.  By  the  assignee  of  a  claim. 

§  334.  What  choses  in  action  are  assignable. 

§  335.  Assignment  of  claims  arising  from  torts. 

§  33<).  Assignments,   how   made. 

§  337.  How  alleged. 

§  33S.  .\verment  of  consideration  for. 

§  3:!(».  Assignment   nf  accounts. 

§  340.  Of    bonds,    notes,    etc. 

§  341.  By   cor])<)rati()n. 

§  .342.  Of  debts. 

§  .34:5.  Pei-sonal  properly  not  in  possession. 

§  .344.  Of  lease. 

S  345.  Of  mortgage. 

8  34(!.  Of   iiisniance   policy. 

8  .347.  Of  judgments. 

§  34S.  Of  stock  of  coi'iiorntidn. 
88  349-.3401).  Effect  of  assignment. 

Form  71.  6  3.5f>.  By    nsslgnee  —  M'lierc    iiiaintiff    is    trustee. 

88  .351-3.57.  Wlio  are  trustees  and  when  may  sue. 

Form  72.  88  .3.'S,  3.50.  Where  jilaintiff  is  a  devisee. 

73.  8  ?,(V).  By  assignee  for  benefit  of  creditors. 

Vol..  I— iii 


XVIU  TABLE   OF   CONTENTS. 

CIIAPTEK  11. 
JOINT  TENANTS  ANL)  TENANTS  IN  COMTMON. 
Form    74.    §  3(>4.    By  joint  tenant  and  tenants  in  comniou, 

CHAPTEK  111. 
CORPORATIONS. 
Form    75.     §  3G9.    By  a  foreign  corporation, 

7G.    §  372.    By  and  against  foreign  coi-poration. 

77.  §  382.    Against  corporation   formed   under  act   in   rela- 

tion to  roads  and  highways. 

78.  §  384.    On  stock  assessments. 
,     79.    §  387.    On  stock  subscription. 

80.  §  391.  On  subscription  for  a  public  object, 

81.  §  394.  Against  a  municipal  corpoi'ation. 

82.  §  395.  Against  county  for  guarding  jail. 

83.  §  390.  By  a  county. 

84.  §  404.  Against  trustees  of  dissolved  corporation,  for  an 

accounting. 

85.  §  408.    Against  directors  of  insurance  company  for  un- 

lawful acts. 

86.  §  409.    Against  directors  of  a  corporation  for  unlawfully 

declaring  dividends,  etc. 

87.  §  413.    ludividiial    ci'editor    against     individual     stock- 

liolder. 

88.  §  414.    The  same  —  Shorter  form. 

CHAPTER  IV. 
EXECUTORS  AND  ADMINISTRATORS. 
Form    89.    §  419.    By  an  executor. 

90.  S  420.    By   an   administratoi'. 

91.  §  424.    By  executor  or  administrator  suing  in  his  own 

right. 

92.  §  426.    Against  an  administrator  or  executor. 

CHAPTER  V. 
HUSBAND  AND  WIFE. 

Form    93.    §  437.    Again.st     husband     for     necessaries     furnished 

family. 
Against  husband  and  wife  for  goods  sold  for  her 

separate  estate. 
Against  husband  and  wife  for  goods  sold  to  tlie 

wife  for  her  separate  estate. 
Against  husband  and  wife  on  note  of  wife  while 

sole. 
By  a  married  woman. 

Against  a  iiiaiTied  woman,  as  sole  trader. 
99.  §§  475,    476a.  Against  a  married  woman  on  contract. 


93. 

§  437 

94. 

§  441, 

95. 

§  442. 

96. 

§  460. 

97. 

§  461. 

08. 

§  471. 

TABLE    OF    CONTENTS. 


XIX 


Form  100. 
101. 


§  477. 
§  478. 


CHAPTEE  VI. 
INFANTS. 

By  an  infant,  suing  by  general  guardian. 
By  an  infant,  suing  by  guardian  ad  litem. 


Form  102. 
103. 


§  492. 
§  497. 


CHAPTEE  VII. 
INSANE   PERSONS. 
By  a  guardian  of  insane  person. 
Against  guardian  of  the  same. 


of     complaint     by 


CHAPTEE  VIII. 

PARTNERS. 

Form  104.    §  504.    Title    and    commencement 
partners. 

105.  §  515.    For  dissolution  and  accounting. 

106.  §  516.    Foi"  accounting  after  dissolution. 

107.  §  517.    Against  partners  —  Averring  partnership. 

108.  §  520.    By  a  surviving  paitner. 


Form  100.  §  527. 

110.  §  533. 

111.  §  535. 
112^  §  54.->. 

113.  §  540. 

114.  §  551. 

115.  §  552. 

116.  §  561. 

117.  §  562. 

118.  §  563. 

119.  §  568. 

120.  §  569. 


CHAPTEE  IX. 
PUBLIC  OFFICERS. 
By  or  against  public  officers. 
By  sheriff  suing  in  aid  of  attachment. 
Against  sheriff  for  not  executing  process. 
Against  sheriff  for  neglecting  to  return  execution. 
The  same  — Under  California  statute. 
Against  sheriff,  for  neglecting  to  pay  over  money. 
The  same  —  Under  California  statute. 
Against  sheriff  for  false  return. 
The  same  —  Allegation  for  not  levying. 
The  same— Another  form  of  allegation. 
For  seizing  a  vessel. 
For  an  escape. 


Form  121. 
122. 
123. 

124. 
125. 
126. 


CHAPTEE  X. 

RECEIVER. 

8  581.    By  a  receiver  appointed  pending  litigation. 
i  582.    Motion  for  appointment  of  receiver. 

By  a  receiver  appointed  in  supi)Iemeiit:iry  pro- 
ceedings. 
The  same  —  Setting  out   proceedings  at   length. 
By  receiver  of  a  dissolved   corporation. 
By   n'ceiver  of  mutual   insurance   company,   on 
jtremium  note. 
5  O^Mm.  Questions  of  pleading. 


§  598. 

S  601. 
8  6^)2. 


XX  TABLE    OF    CONTENTS. 

SUBDIYISIOE"  SECOND. 

IN  ACTIONS  FOR  DEBT. 


CHAi'TKK.    I. 

ACCOUNTS. 

Form  127.  5  005.  For  nioiu>y  due  ou  au  account. 

128.  §  GOO.  The  same  —  Common  count. 

129.  §  (515.  By  an  assignee  on  an  account. 

130.  §  01(5.  On  an  account  stated. 

131.  §  (522.  For  a  general  balance  of  account 

132.  §  023.  Upon  an  account  for  services. 

133.  §  024.  The  same  — Common  count. 

134.  §  (>27.  The  same  —  By   an   architect. 

135.  §  628.  The  same  —  Common  count. 

136.  §  629.  The  same  —  By  a  broker,  for  commissions. 

137.  §  (330.  The  same  —  Common  count. 

138.  §  631.  By  caiTier,  against  consignor  for  freight. 

139.  §  (i32.  Tlie  same  —  Common  count. 

140.  §  033.  The  same  — Against  consignee. 

141.  §  034.  The   same  —  Common  count. 

142.  §  (530.  By  editor,   for  services. 

143.  §  037.  The  same  —  Common  count. 

144.  §  (539.  By  author,  for  editing  book. 

145.  §  040.  The  same  —  Common  count. 

146.  §  642.  For  services  and  materials  furnished. 

147.  §  643.  The  same  —  Common  count, 

148.  §  644.  For  tuition   bills. 

149.  §  (>45.  The  same  —  Common   count. 

CHAPTER  II. 

ON  AWARDS. 

Form  150.    §  (546.    On  an  award  of  arbitrators  —  Common  form. 

151.  §  600.    Ou  an  award  of  an  umpire. 

152.  §  061.    Allegation  of  enlargement  of  lime. 

CHAPTER  III. 

ON  EXFKESS  PROMISES. 

Form  153.    §  065.    On  an   express  promise   in   consideration   of  a 
precedent  debt. 

154.  §  670.    Upon  compromise  of  an  action. 

155.  §  073.    On  promise  of  third  person  to  pay   money   to 

plaintiff. 

156.  §  677.    On  promise  to  pay  for  surrender  of  lease. 

157.  §  678.    For  the  i)urchase  money  of  land  conveyed. 

158.  §  682.    Allegation  of  new  promise. 
§  084a.  Promise  on  a  contingency. 


TABLE    OF    CONTEXTS. 


ZXl 


CHAPTEE  IV. 

GOODS  SOLD  AND  DELIVERED. 

Form  158.    §  G85.    For  goods  sold  and  delivered. 
The  same  —  Common  count. 
The  same  —  Short  form. 
For  goods  sold  and  delivered  at  fixed  price. 
The  same  —  For  a  reasonable  price. 
The  same  —  On  specified  price  and  credit. 
By  assignee,  for  stock,  fixtures,  and  good  will. 
By   firm   with   dormant   partner  —  Price  agreed 

upon. 
For  goods  delivered  to  third  person  —  Piice  fixed. 
For  goods  sold,  but  not  delivered  —  Price  fixed. 


I'GU. 

§  686. 

161. 

§  692. 

162. 

§  695. 

163. 

§  700. 

1&4. 

§  704. 

165. 

§  706. 

166. 

§  708. 

167. 

§  709. 

168. 

§  712. 

CHAPTER  V. 

ON   GUARANTIES. 

Form  169.    §  713.    Against  principal  and  sureties,  on  conti'act  for 
work. 

170.  §  719.    On    agreement   to   be   answerable   for   price    of 

goods  sold. 

171.  §  724.    Against   guai-antor  of   mortgage,   for  deficiency 

after  foreclosure. 

172.  §  731.    On  a  guaranty  of  a  precedent  debt, 

173.  §  732.    Against  sureties  for  payment  of  rent. 


Form  llA. 

§  735. 

175. 

§  736. 

176. 

§  737. 

177. 

8   738. 

178. 

f  749. 

179. 

§  750. 

180. 

§  753. 

181. 

§  7.''.8. 

182. 

§  7.59. 

183. 

§  761. 

184. 

«  76-2. 

185. 

§  773. 

180. 

§  77.'>. 

187. 

§  776. 

188. 

5  777. 

189. 

§  778. 

190. 

8  779. 

191. 

§  78<J. 

CHAPTEE  VI. 

INSURANCE. 

On  fire  policy  —  By  the  insured. 
Where  plaintiff  purchased  the  property  after  in- 
surance. 
The   same  —  xinother   form. 
The  same  —  Loss  payable  to  mortgagee. 
Allegation  of  removal. 

On  agreement  to  insure  —  I'olicy  not  delivered. 
By  executor  on  life  policy. 
By  a  wife,  partner,  or  creditor  of  insured. 
By  assignee  in  trust  for  wife  of  insured. 
Accidental   insurance  —  Insured   against   insurer. 
.Marine  insurance  — On  an   oi)en   policy. 
On  cargo  lost  by  fire  —  Valueil  policy. 
Valued  policy  —  Allegation  of. 
On  freight— Valued  policy. 
Averment  by  loss  by  collision. 
Averment   of   waiver  of  a  coiidition. 
For  a  i»artlal  loss  and  contribution. 
Allegation  for  a  particular  average  loss. 


xxn 


TABLE    OF   CONTENTS. 


CHAPTER  VII. 

ON  JUDGMENTS. 

Form  192.  §  784.  Ceueial  lonu. 

1D3.  §  7D4.  Ou  jiulgiiiout  bj-  leave  of  court. 

194.  §  70G.  The  same  —  By  an  assignee. 

195.  §  798.  On  foreign  judgment  of  court  of  general  juris 

ilictiou. 

196.  §  805.    On  foreign  judgment  of  inferior  court. 

CHAPTER  VIII. 
ON  LIABILITIES  OKEATEI)  BY  STATUTE, 

Form  197.  §  812.  Penalties  under  statute  —  General  form. 

198.  §  830.  For  selling  liquor  without  a  license. 

199.  §  831.  Against  a  witness,  for  disobeying  subpoena. 

200.  §  833.  For  violation  of  ordinance  of  supervisors. 


CHAPTER  IX. 

FOR   MONEY   HAD    AND    RECEIVED   TO    PLAINTIFFS'    USE 

Common  form. 

Against  attorney  or  agent,  with    demand. 

The  same  —  Another  form. 

For  money  received  by  defendant  through  mis- 

talie. 
For  price  of  goods  sold  liy  a  factor. 
Against  factor,  for  price  of  goods  sold  on  credit. 
Against  broker,  for  proceeds  of  note  discounted. 

CHAPTER  X. 

FOR  MONEY  LENT. 

Form  208.*  §  860.  Lender  against  borrower. 

209.  §  863.  The  same  — No  time  for  payment  agreed  on. 

210.  §  SM.  By  assignee  of  lender,  against  borrower. 

211.  §  865.  Partners,   Lendei-s,   against   partners,   borrowers. 

CHAPT.ER  XI. 


Form  201. 

§  835. 

202. 

§  842. 

203. 

§  847. 

204. 

§  849. 

205. 

§  852. 

20G. 

§  855. 

207. 

§  858. 

Form  212. 


866. 


213.    §  869. 


214. 

§  871. 

215. 

§  873. 

216. 

§  875. 

FOR  MONEY  PAID. 

For  money  paid  to  a  third  party  at  defendant's 

request. 
By  one  having  paid  the  debt  of  another,  to  be 

rei)aid  on  demand. 
To  be  repaid  on  a  specified  day. 
For  rei)ayment  of  money  on  a  reversed  judgment. 
By  broker,  for  money  advanced  on  account  of 

his  principal. 


TABLE  OF  COXTEXTS. 


XXlll 


Form  217.    §  877.     For  repayment  of  deposit  on  purchase  of  real 
estate. 

218.  §  881.    To  recover  back  a  wager. 

219.  §  884.    By   lamllord,   against  tenant,   for  repayment  of 

tax. 

220.  §  887.    Against  carrier,  to  recover  money  paid  in  excess 

for  freight. 

221.  §  889.    To  i-ecover  back  freight  on  failure  of  carriage. 

222.  §  891.    By  surety,  against  principal. 

223.  §  893.    For  repayment   of  advances  on   services. 


Form  224. 

§  896. 

225. 

§  904. 

226. 

§  908. 

227. 

§  909. 

228. 

§  910. 

229. 

§  912. 

230. 

§  914. 

231. 

§  917. 

232. 

§  918. 

233. 

§  919. 

234. 

§  920. 

235. 

§  921. 

236. 

§  924. 

CHAPTER  XII. 

FOR   SERVICES,    WORK   AND    LABOR. 

For  services,  at  a  fixed  price. 
At  a  reasonal)le  price. 
By  carriers,  for  freight. 
For  passage  money. 
By  parent,  for  senMces  of  minor  son. 
For  services  and  mateiials  at  a  fixed  price. 
By  an  attorney,  for  services  and  disbursements. 
For  services  and  materials  at  a  reasonable  price. 
By  advertising  agent,  for  services  and  disburse- 
ments. 
By  publisher  and  proprietor,  for  adveri;ising. 
For  stabling  horses. 
Special  conti-act  completely  fulfilled. 
The  same  —  Contract  fulfilled  by  an  assignee. 


Form  237. 

§  926. 

238. 

§  929. 

239. 

§  935. 

2W. 

§  938. 

241. 

§  942. 

242. 

§  M3. 

243. 

8  944. 

244. 

§  946. 

at5. 

8  948. 

246. 

8  9.-.I. 

^7. 

8  959. 

248. 

8  9<M). 

249. 

§  961. 

ZW. 

8  om. 

251. 

8  90i. 

CHAPTER  XIII. 

FOR  USE  AND  OCCUPATION. 

On  an  express  contract. 
For  rent  reserved  in  a  lease. 
For  deficiency  after  a  re-entry. 
Against  as.signee  of  lessee. 
Grantee  of  reversion  against  lessee. 
Allegation  of  assigiiincnt  of  lease. 
Allegation  by  heir  of  revei'sioner. 
Assignee  of  devisee  against  assignee  of  lessee. 
For  use  and  occui)ati(iii  of  i)asture. 
On  an  lm])lied  contract. 
For  IfKlgliig  and  l)oard. 
AllegatU)!!   for  lodging. 
For  tlu'  hire  of  ixTsonal   property. 
Of  pianoforte,  with  dainages  for  n(^t  retumfng. 
964.    Of  furniture,  with  damages  for  ill-use. 


XXIV  TABLE  OF  CONTENTS. 


SUBDIVISION  THIRD. 


rrON     WRITTEN     INSTIUMENTS     FOR     THE     PAYMENT     OF     MONEY     ONLY. 


CHAPTER  I.  . 
ON  NEGOTIABLE  PAPEIi,  BONDS,  ETG. 

Form  252.  §  9G5.  Against  maker. 

253.  §  98G.  On  a  bond  for  the  payment  of  money  only. 

254.  §  990.  The  same  —  Pleading  its  legal  effect. 

255.  §  991.  By  sui-viviug  obligee  on  joint  bond. 

CHAPTER  II. 

ON   BILLS   OF   EXCHANGE. 

Foi-eign  bills  —  Payee  against  drawer  for  non- 
acceptance. 

Payee  against  acceptor. 

Inland    bills  —  Drawer    against    acceptor,    for 
nonpayment. 

On  bill  not  negotiated. 

Bill  returned  and  taken  np. 

Acceptor  without  funds  against  drawer. 

The  same  —  Copartnership  firm  against  copart- 
nership firm. 

Payee  against  drawer  for  nonacceptance. 

Allegation  setting  out  copy  of  bill. 

Allegation  of  demand  and  notice  excused. 

Allegation  of  excuse  for  noupresentment. 

The  same— Drawee  not  found. 

TTie  same  — Bill  payable  at  specific  date. 

Partners  payees,   agaiust   i)artnei-s   acceptors. 

Paj^ee  against   acceptor  —  Short    form. 

Allegation  setting  out  copy  of  bill. 

Pleading  the  legal  effect. 

Acceptance  varying  as  to  time  from   the  bill. 

"Where  drawer  is  also  acceptor  on  bill  drawn 
on  himself. 
275.    §  1053.    By  assignee  of  bill  payable  out  of  a  particular 
fund. 

Payee  against  drawer  and  acceptor. 

On  a  bill  accepted  for  honor. 

By  indorsee— First  indorsee  against  acceptor. 

Against  first  indorser. 

Against  drawer  and  indorser. 

Against  all  prior  parties. 

Subsequent  indorsee  against  acceptor. 

Against  first  indorser. 


OQ  256. 

§ 

994. 

257. 

§ 

1007. 

258. 

§ 

1011. 

259. 

§ 

1019. 

260. 

§ 

1020. 

261. 

§ 

1023. 

262. 

§ 

1024. 

,  263. 

§ 

1025. 

2&i. 

§ 

1026. 

265. 

§ 

1027. 

266. 

§ 

1028. 

267. 

§ 

1029. 

268. 

§ 

1032. 

269. 

§ 

1033. 

270. 

§ 

1042. 

271. 

§ 

10i3. 

272. 

§ 

1046. 

273. 

§ 

10.51. 

274. 

§ 

1052. 

276. 

§ 

lO.^l'K 

277. 

§ 

1056. 

278. 

§ 

10.59. 

279. 

§ 

10<iO. 

280. 

§ 

1061. 

281. 

§ 

1063. 

282. 

§ 

1064. 

283. 

§ 

1065. 

TABLE  OF  CONTEXTS.  XXV 

Form  284.  §  1066.  Against  intermediate  indorser. 

285.  §  1067.  Against  last  indorser, 

286.  §  1068.  Against  all  prior  parties. 

287.  §  10G9.  By  a  bank  in  its  corporate  name. 

288.  §  1070.  Checks  —  Payee  against  drawer. 

289.  §  1080.  Indorsee  or  bearer  against  drawer. 

290.  §  lOSl.  Allegation  of  excuse  for  failure  to  give  notice. 

291.  §  1083.  The  same  —  From  insolvency  of  drawee. 

292.  §  1085.  Against  drawer  and  indorser. 

293.  §  1086.  Against  bank  drawee,  having  certified. 

CHAPTER  III. 
ON  PROMISSORY  NOTES  AND  CERTIFICATES  OF  DEPOSIT. 

Maker  of  accommodation  note  having  paid  it. 

Joint  maker  of  a  note  against  the  other  for 
contribution. 

Indorser  of  note  having  paid  a  part. 

Payee  against   maker. 

On  two  notes,  one  partly  paid. 

On  several  notes  given  as  security. 

On  a  note  signed  by  an  agent. 

On  a  note  made  by  partners. 

The  same  —  Averring  partnership. 

By  payee  as  receiver  against  partnership. 

Sight  note,  allegation  of. 

On  a  note  wrongly  dated. 

Domestic  coi*poration  against  a  foreign  corpora- 
tion. 

Against  surviving  maker. 

Against  maker  and  indorser. 

Indorser  —  First  Indorsee  against  maker. 

Against  first  indorser. 

Allegation  of  notice  to   indorser  waived. 

Allegation  of  excuse  for  noupresentment. 

Against  maker  and  first  indorser. 

Against  maker,  on  note  drawn  to  maker's  order. 

Subsefiuont  indorsee  against  maker. 

Against  first  indorstM*. 

Against  intermediate  indorser. 

Against  immediate  indorser. 

Against  all  jirior  i)ar1ies. 

'iransfers  not  by  indorseinont  —  By  assignee. 

P.y  treasurer  of  unincorporated  company,  on 
note  payable  to  former  treasiu'er. 

On  a  note  i)ayable  on  a  contingency. 

On  a  note  i)ayable  in  chattels. 

On  guaranties  —  Against  maker  and  guarantor 
of  note. 

\'0L.  I — iv 


rm  294. 

§  1089. 

295. 

§  1096. 

296. 

§  1097. 

297. 

§  1100. 

298. 

§  1130. 

299. 

§  1132. 

300. 

§  1133. 

301. 

§  1135. 

302. 

§  11S7. 

303. 

§  1138. 

304. 

§  1141. 

305. 

§  1142. 

306. 

§  1143. 

307. 

§  1147. 

308. 

§  1149. 

309. 

§  11.50. 

310. 

§  ll.>4. 

311. 

§  1106. 

312. 

§  1167. 

313. 

§  1170. 

314. 

§  1174. 

315. 

§  1176. 

316. 

§  1178. 

317. 

fi  1170. 

318. 

§  1180. 

319. 

S  1181. 

320. 

§  llSli. 

321. 

S  11.S.S. 

322. 

g  IIS!). 

323. 

8  1191. 

321. 

§  1198. 

ZZVl 


TABLl^  OF  CONTENTS. 


STJBDIYISIO]Sr  FOURTH. 


FOB  UAMAOES  ON  BREACH  OF  COSTRACT. 


CHAPTER  I. 

ON  BUILDERS'  COXTRACTS. 
Form  32r>.    §  1212.    By    contractor,   ou   special   contract,    modified, 
with  claim  for  extra  work. 
32G.    §  1225.    Against  builder  for  defective  workmanship. 
327.    §  1226.    For  not  completing  —  Special  damages  for  loss 
of  rent. 

CHAPTER  11. 
ON  CHARTER  PARTIES. 
Form  328.    §  1229.    Owner  against  freighter,  for  not  loading. 

329.  §  1232.    Allegation  for  demurrage. 

330.  §  12i7.    Charterer   against   owner,    for   deviation    from 

contract  and  abandonment  of  voyage. 

331.  §  12.51.    Ship  owner  against  charterer,  for  freight. 
832.    §  1252.    Allegation  against  assignee  of  cargo. 


CHAPTER  III. 
ON   COVENANTS. 
Form  333.    §  1256.    Warranty  of  title  to  real  property. 
334.     §  1258.    Eviction,  allegation  of. 
,   335.    §  1264.    Special  damages,  allegation  of. 

336.  §  1265.    Breach  of  warranty  of  title  —  Another  form. 

337.  §  1266.    By     assignee     of     gi-antee,     against     previous 

grantor. 

338.  §  1267.    By     heirs     of     covenantee,     against     previous 

grantor. 

339.  §  1268.    By  devisee  of  covenantee,  against  the  same. 

340.  §  1269.    Warranty  as  to  quantity. 

341.  §  1270.    On    covenant    against    incumbrances    on    real 

property. 

342.  §  1280.    The  same  —  Where  deed  expressed  specific  in- 

cimibrance. 
On  a  covenant  of  seisin  or  of  power  to  convey. 
Grantee's  covenant  to  build. 
On      covenant      against      nuisances  —  Grantor 

against  grantee. 
On  a  continuing  covenant  to  maintain  a  fence. 
Lessor    against    lessee,    on    covenant    to    keep 

I)remises  in  repair. 
348.    §  1307.    Lessee  against  lessor,  for  not  keeping  premises 

in  repair. 


343. 

§  1283, 

344. 

§  1288. 

345. 

§  1293. 

346. 

§  1295. 

Ml. 

§  1297. 

TABLE  OF  CONTEXTS. 


XXVU 


Form  349.    §  1311.    For  not  completing  building  according  to  agree- 
ment. 
350.    §  1312.    For  breach  of  covenant  of  quiet  enjoyment, 

CHAPTER  IV. 

OX  CONTRACTS  OF  EMPLOYMENT. 

For  bi"each  of  contract  to  employ. 
Where  employment  never  took  effect. 
For  breach  of  contract  to  sene. 
By   the  master,   against  father   of   apprentice. 
By  the  apprentice  against  tlie  master. 
For  breach  of  contract  to  manufacture  goods. 
For  refusal  to  accept  manufactured  goods. 
On  promise  to  manufacture  raw  material  into 
merchantable  goods. 


Form  351. 

§  1317. 

352. 

§  1323. 

353. 

§  1324. 

354. 

§  1328. 

355. 

§  1332. 

356. 

§  1334. 

357. 

§  1335. 

358. 

§  1330. 

Form  350. 

§  1337. 

3G0. 

§  1354. 

361. 

§  1357. 

362. 

§  1360. 

363. 

§  1303. 

CHAPTER   V. 
ON  INDEMNITY. 

By  retiring  partner,  on  remaining  partner's 
promise  to  indemnify  against  damage. 

Against  sui-eties  on  partner's  bond  of  indemnity. 

Surety  against  principal,  on  indemnity  against 
liability. 

Subtenant  against  immediate  lessor. 

On  agreement  of  indemnity  to  plaintiff,  for  de- 
fense of  action  for  surrender  of  property. 


CHAPTER  VI. 

ON  BREACH  OF  PROMISE  OF  MARRIAGE. 

Form  304.    §  1365.    For  refusal  to  marry. 

365.    §  1371.    For  marriage  with  another 

CHAPTER  VII. 

ON  SALIO  AND  DELIVERY  OF  CHATTELS. 

Form  300.    §  1375.    Seller   against    imrcliaser.    refusing    to   receive 
and  pay  for  goods. 
.307.    §  l.'^Ol.    Tlie  same  — On  contract  made  Ity  broker. 
3f».    S  139;{.    'J'he  same  —  On  prr)niise  to  pay  by  good  bill  of 
excliange. 
Tlie  same— For  not  returning  goo<ls  or  paying 

for  them  in  a  reasonalilc  time, 
'liie  same— For  not  giving  scciiiily  according 

to  <-oiidition8  of  sale  at  auction. 
I'or  a  dp(i(ieii<'y  on  a  resale. 
By     niannfactnrer.     for    goods     ina<le     at    de- 
fendant's request  and  not  accepted. 


3<;9.  §  l?/J4. 

370.  §  KiDO. 

371.  §  1  :'.;»<;. 

372.  §  1401. 


XXVIU  TABLE  OF  COXTENTS. 

Form  ;>7o.  S  HOT.  For  bn?:u'h  of  iin)iuise,  by  purcliaser  of  good 
will,  uot  to  cany  on  rival  trade, 

874.  §  Hilt.  Biiyerr  agaiust  seller  for  uot  delivering  goods 
sold. 

375.    §  142*J.    For  uot  delivering  wltliiu  a  spi'cified  time. 

o7G.  §  14L'o.  Allegation  where  neither  time  nor  iJace  of  de- 
livery is  tixed. 

377.  §  1424.    Allegation   w'heao   both    time   and    place   w'ere 

fixed. 

378.  §  1425.    Allegation    where    time    of    delivery    was    not 

fixed. 

379.  §  1431.    Allegation  of  part  payment. 

380.  §  1434.    Against  seller  of  stock,  for  nondeliveiy. 

CHAPTER  YIII. 
FOR  SALE  OF  REAL  PROPERTY. 
Form  381.    §  1436.    Purchaser  against  vendor,  for  breach  of  agree- 
ment to  convey. 

382.  §  144G.    Averment  of  excuse  for  nonperformance. 

383.  §  1447.    The    saiue  —  For    damage    for    uot    executing 

conveyance. 

384.  §  1448.    Vendor  against  purchaser,  for  breach  of  agree- 

aient  to  piu-chase. 

385.  §  1452.    Averment  of  excuse  for  nonperformance. 

386.  §  1453.    The  same— For  not  fulfilling  agreement,  and 

for  deficiency  on  resale. 

387.  §  1455.    Vendor  against  executor  of  purchaser. 

388.  §  1456.    Vendor    against    purchaser,    for    real    property 

contracted  to  be  sold  but  uot  conveyed. 
§  1457a.  Payment  and  delivery. 
§  14.57b.  Judgment  on  pleadings. 
§  1457c.  Rescission. 

CHAPTER  IX. 
UPON   UNDERTAKINGS,   BONDS,   ETC, 

Short  form  —  On  undertakings  given  in  actions. 

For  costs  of  appeal. 

For  costs  and  damages  on  an  arrest. 

On  release  from  arrest. 

P^or  costs  and  damages  on  attachment. 

To  procure  discharge  of  an  attachment. 

In  claim  and  deliveiy. 

In  injunction. 
§  1.519.    On  a  bond  or  undertaking,  condition  only  set 
forth. 

398.  §  1524.  On  arbitration  bond  —  Refusal  to  comply  with 
award. 

399.  §  1526.    For  revoking  arbitrator's  powers. 

400.  §  1527.    On  a  bond  for  faithful  accounting  of  an  agent. 


Form  389. 

§  14.58. 

390. 

§  1471. 

391. 

§  1484. 

392. 

§  1485. 

393. 

§  1492. 

394. 

§  1495. 

395. 

§  1499. 

396. 

§  1511. 

397. 

§  1.519. 

Form  401. 

§  1.529. 

402. 

§  1533. 

403. 

§  1534. 

404. 

§  1535. 

405. 

§  1536. 

406. 

§  1537. 

TABLE  OF  CONTEXTS.  XXLX 

For  fidelity  of  a  clerk. 

Ou  an  official  bond. 

Alleg'atiou  for  slieriff  s  neglect  to  levy. 

For  neglect  to  sell  after  levy. 

For  neglect  to  return. 

Allegation  of  breach  in  treasurer's  bond. 


CHAPTER  X. 

ON  WARRANTY  OF   CHATTELS. 

Form  407.  §  1564.  WaiTanty  of  title. 

408.  §  1577.  Of  quality. 

409.  §  1589.  Of  soundness. 

410.  §  1596.  On  a  warranty  of  a  judgment. 

411.  §  1597.  On  a  wari-anty  of  a  note. 

CHAPTER  XI. 

SEVERAL  CAUSES  OF  ACTION  UNITED. 
Form  412.    §  1598.    Causes  of  action  under  money  counts. 


SUBDIYISIOIT  FIFTH. 

FOR  DAMAGES  UPON  WRONGS. 

PART  FIRST  — FOR  INJURIES  TO  THE  PERSON. 


CHAPTER  I. 

FOR  ASSAULT  AND   BATTERY. 

Form  413.    §  1620.    Common  foi-m. 

The  same  —  Short  form. 

Assault  by  maiTied  woman. 

With  special  damages. 

Against  corporation,  for  damages  caused  by  an 

assault  and  forcible  ejection  from  a  car. 
.Assault  and  false  imprisonment. 
Fuller  form. 

CHAPTER  TI. 

FOR  FALSE  IMPRISONMENT. 

Form  420.    §  1049.    Common  form. 

421.    §  1G03.    The  same  —  Another  form. 


414. 

§ 

1<>33. 

415. 

§ 

1(«4. 

416. 

8 

1635. 

417. 

§ 

1636. 

418. 

§ 

1645. 

419. 

§ 

1(>18. 

XXX  TABLE  OF  CONTENTS. 

CHAPTEK  III. 

LIBEL, AND  SLANDER. 
For  libel,    tlio   words   Ihmii^   libelous   in   them- 

solves. 
The  words  uot  beiiij;-  libelous  in  themselves. 
By  au  attorney  at  law. 
By  a  physician. 

Charge  oli  dishonesty,  ete..  in  business. 
By   corporation. 
For   charge-  of   crime,    words    uot    libelous   on 

their  face. 
Accusing  plaintiff  of  perjiny  in  his  answer  to 

a  complaint. 
For  composing  a  libel  not  directly  accusing  the 

plaintiff  of  perjury. 
F'or  a  libel  uot  directly  accusing  the  plaintiff 

of  larceny. 
For  libel  by  signs. 
For    slander,    the    words    being    actionable    in 

themselves. 
Words  spoken  in  a  foreign  language. 
The  words  not  being  actionable  in  themselves. 
Respecting  plaintiff's  trade. 
Discharge  from  employ. 
Refusal  to  deal. 
Refusal  to  employ. 
Refusal  to  retain  in  employ. 
Refusal  to  sell. 
§  1755.    Charging  a  criminal  offense. 

The  same  —  Several  causes  of  action. 
§  1760.    For  words  dii-ectly  charging  perjuiy. 

The  same  —  Containing  special  inducements. 

CHAPTEK  IV. 
MALICIOUS  PROSECUTION. 
Common  form. 
The  same — Fuller  form. 
For  procuring  plaintiff  to  be  indicted. 
The  same— For  obtaining  indictment  on  which 

a  nolle  prosequi  was  afterwards  entered. 
Where  judgment  of  acquittal  was  rendered. 
For  malicious  arrest  in  a  civil  action. 

CHAPTER  V. 
FOR   PERSONAL  INJURY   CAUSED   BY    NEGLIGENCE. 

Form  451.    §  1798.    For    injuries    caused    by    collision    of    vehicle 
driven  by  servant. 
452.    §  1804.    Against  common  carriers,  for  overturning  stage 
coach. 


Form  422. 

§ 

1605. 

423. 

S 

1684. 

424. 

S 

1698. 

425. 

§ 

1699. 

42G. 

§ 

1700. 

§ 

1701. 

427. 

§ 

1702. 

428. 

§ 

1703. 

429. 

§ 

1704. 

430. 

§ 

1705. 

431. 

§ 

1706. 

432. 

§ 

1707. 

433. 

§ 

1734. 

434. 

§ 

1736. 

435. 

§ 

1742. 

436. 

§ 

1750. 

437. 

§ 

1751. 

438. 

§ 

1752. 

439. 

§ 

1753. 

440. 

§ 

1754. 

441. 

§ 

1755. 

'  442. 

§ 

1758. 

443. 

§ 

1760. 

444. 

§ 

1763. 

Form  445. 

§  1764. 

446. 

§  1786. 

447. 

§  1787. 

448. 

§  1788. 

449. 

§  1790. 

4.50. 

§  1792. 

TABLE  OF  CONTENTS. 


453. 
454. 
455. 
456. 

§ 
§ 
§ 
§ 

1811. 
1820. 
1821. 
1822. 

457. 
458. 

§ 

§ 

1824. 
1831. 

459. 

§ 

1887. 

460. 

§ 

1841. 

461. 

§ 

1&42. 

462. 

§ 

1854. 

463.    §  1864. 


464. 

§ 

1866. 

465. 

§ 

1867. 

466. 

§ 

18<^;8. 

467. 

§ 

1874. 

468. 

§ 

1876. 

Against  a  railroad  for  injuries  by  collision. 

The  same  — By  cai-  i-unuing  off  track. 

For  negligently  stai-tiug  car. 

For  injuries  caused  by  negligence  on  a  railroad, 
in  omitting  to  give  signal. 

By  a  steamboat  explosion. 

For  injuries  to  an  engineer  of  a  railroad  com- 
pany, caused  by  a  collision. 

Said  company  having  used  a  condemned  loco- 
motive. 

By  executor  or  administrator  against  a.  railroad 
company,  for  injuries  causing  death. 

By  heirs,  for  injuries  to  employee,  causing 
death. 

Against  a  municipal  corporation,  for  injuries 
caused  by  leaving  the  street  in  an  insecure 
state. 

For  injuries  caused  by  rubbish  in  the  street, 
whereby  plaintiff  was  thrown  from  his 
carriage. 

For  injuries  caused  by  leaving  a  hatchway  open. 

Auotlier  form. 

For   injuries  caused   by  a  vicious   dog. 

Against  physician  for  maltreatment. 

Against  surgeon  for  malpractice. 


Form  469. 

§  1877, 

470. 

§  1880. 

471. 

§  1884. 

472. 

§  1886. 

473. 

§  1899. 

474. 

§  1900. 

CHAPTER  VI. 

FOR  VIOLATION   OF   PEKSOXAL   RKTHTS. 
§  1877.    Against   officers    of   an    election,    for   refusing 
plaintiff's  vote. 

For  criminal  conversation. 

For  enticing  away  plaintiff's  wife. 

For  debaucliing  a  daugliter. 

For  seduction  of  plaintiff's  daughter  or  servant. 

For  seduction,  by  female  seduced. 


475. 

§  1902. 

476. 

§  1914. 

477. 

§  1915. 

478. 

§  191 G. 

479. 

§  1917. 

XXxii  T.VBLF.    OF    CONTENTS. 

SUBDIVISION  FIFTH. 

FOR  DAMAGES  UPON  WRONGS. 
PART  SECOND  — FOR  INJURIES  TO  PROPERTY. 

CHAPTER  I. 

BAILEES. 
Form  475.    §  1902.    Against  a  receiptor. 
For  iujury  to  pledge. 
For  loss  of  pledge. 

For  not  taking  care  of  and  returning  goods. 
Against  hirers  of  cliattels.  for  not  talving  proper 
care  of  them. 

480.  §  1918.    For  iujury  to  liorse,  resulting  from  immoderate 
driving. 

481.  §  1919.    For   driving   horse   on   different    journey    from 
that  agreed. 

482.  §  1920.    Against   innkeeper,   for  loss   of   baggage. 

483.  §  1922.    For  loss  of  pocket-book. 

484.  §  1923.    For  loss  of  goods  by  theft. 

485.  §  1925.    For  refusing  to  receive  guest. 

486.  §  1926.    Against  warehouseman,  for  injury  to  goods  for 
neglect  to  obey  instructions. 

487.  §  1933.    For  refusal  to  deliver  goods. 
§  1934a.  Money  deposited  for  use  of  plaintiff. 

CHAPTER  II. 

COMMON  CARRIERS. 

Against  common  carrier,  for  breach  of  duty. 

For  loss  of  goods. 

For  loss  of  baggage. 

Against   carrier   by    water,    for   negligence    iu 
loading  cargo. 

For  not  regai-ding  notice  to  keep  dry. 

For  loss  in  unloading. 

For  faihue  to  deliver  at  time  agreed. 

On  special  contract  for  loss  of  goods. 

Against  telegraph  company  for  failure  to  trans- 
mit message  as  directed. 
§  1978a.  Allegation  of  speculative  damages. 
§  1978b.  Who  may  sue. 


Form  488. 

§  1936. 

489. 

§  19.52. 

490. 

§  1957. 

491. 

§  1964. 

492. 

§  1966. 

493. 

§  1969. 

494. 

§  1971. 

495. 

§  1974. 

496. 

§  1978. 

TABLE    OF   CONTENTS. 


XXXUI 


AGAINST     AGENTS, 

Form  497.     § 


498.  § 

499.  § 

500.  § 

501.  § 

502.  § 

503.  § 


1979. 

1985. 
1986. 
1987. 

1988. 
1989. 
1991. 


504.  §  1993. 


505.  § 
606.  § 
507.  § 


196G. 
1998. 
2000. 


508.    §  2002. 


509. 

§  2005. 

510. 

§  2014. 

§  201.5. 

5U. 

§  2016. 

512. 

§  2017. 

513. 

§  2021. 

514. 

§  2022. 

Form  515. 

§  2024. 

516. 

§  2025. 

517. 

§  2032. 

518. 

§  2033. 

519. 

S  2034. 

520. 

§  2035. 

521. 

§  203f;. 

522. 

§  2037. 

CHAPTER  III. 

EMPLOYEES,     AND     OTHERS     FOR 
NEGLIGENCE. 

Asainst  agents  for  not  using  diligence  to  sell 

goods. 
For  carelessly  selling  to  an  insolvent. 
For  selling  for  a  worthless  bill. 
Against   an   auctioneer,    for   selling    l>elo\v    the 

owner's  limit. 
For  selling  on  credit,  against  orders. 
Against  auctioneer  or  agent,  for  not  accounting. 
Against  forwarding  agent,   for  not  forwarding 

goods  as  agreed. 
Against    an    attorney,    for    negligence    in    the 

prosecution  of  a  suit. 
P^'or  negligent  defense. 
For  negligence  in  examining  title. 
Against  a  contractor,  for  leaving  the  street  in 

an   insecure  state,    whereby   plaintiffs   horse 

was  injured. 
Against     municipal     corporation,     for     damage 

done  by  mob  or  riot. 
Against  a  railroad,  for  killing  cattle. 
For     kindling     a     tire     on     defendant's     land, 

whereby  plaintiff's  property  was  burned. 
Against  railroad  companies. 
For  chasing  plaintiff's  cattle. 
For  keeping  dog   accustomed  to   bite  animals. 
For  shooting  plaintiff's  dog. 
For    untying    plaintiff's    boat,     by    reason    of 

which  it  was  carried  by  the  current  against 

a  bridge,  and  injured. 
For    flowing    water    from    roof    on    plaintiff's 

premises. 
For  negligence  of  millowners,    whereby  plain- 
tiff's land  was  overflowed. 
Against   water  company,    for  negligent   escape 

of  water. 
For  undermining  plaintiff's  land. 
For  undermining  plaintiff's  building. 
Reversioner,  obligation  by. 
For  nttt  using  du<'  care  and  skill  in  repairing. 
Against  watchmaker  for  not  returning  watch. 


CHAPTER  IV. 

SLANDER  OF  TITLE. 
Form  523.    §  2038.    Common  form. 


Form  524. 

§  2041. 

525. 

§  20()7. 

526. 

§  2071. 

527. 

§  2083. 

528. 

§  2087. 

529. 

§  2088. 

530. 

§  2089. 

531. 

§  2090. 

532, 

§  2092. 

533. 

§  2093. 

TABLE   OF   CONTENTS. 

CHAPTER  V. 
TRpsrAss. 

For     malicious     injury,     claiming     increased 

daniajies  muler  statute. 
For  damajies  for  injuring  trees. 
Tlie  same  —  For  cutting  and  convortlng  timber. 
The  same  —  For  treading  down  grain. 
For    damages    by     trespassing     cattle,     under 

California  statute. 
For  removal  of  fence. 
For  trespass  on  chattels. 
Averment  of  special  damage. 
For  malicious  injury  to  property. 
For  entering  and  injuring  a  house  and  goods 

therein. 


ESTEE'S 
PLEADINGS,    PRACTICE 

AND  FORMS. 


PART  FIRST. 

GENERAL  PBINCIPLES. 


CHAPTER  I. 

REMEDIES. 


§  1.  Remedies,  how  secured.  Remedies  for  wrongs  are  se- 
cured by  a  proper  application  to  a  competent  court,  by  the 
party  or  parties  entitled  thereto,  in  an  action  or  proceeding 
against  the  proper  parties,  in  the  form  prescribed  by  law. 

§  2.  The  same.  The  proceedings  in  courts  of  justice  to  se- 
cure such  remedies  are  divided  by  the  statutes  of  all,  or  nearly 
all,  of  the  states  which  have  a  code  of  practice  or  civil  proced- 
ure, into:  1.  Actions;  2.  Special  proceedings;  3.  Provisional 
remedies.^ 

I.  OF  ACTIONS. 

§  3.  What  is  an  action.  An  action  has  been  defined  to  be 
an  ordinary  proceeding  in  a  court  of  justice,  by  which  one  party 
prosecutes  another  party  for  the  enforcement  or  protection 
of  a  right,  the  redress  or  prevention  of  a  wrong,  or  the  punish- 
ment of  a  pul)lic  offense.  lUil  in  some  sense'  this  definition  is 
equally  applicable    to    special    proceedings.     More    accurately, 

1  Under  the  Code  of  Civil  Procedure  of  California,  the  first  and 
second  divisions  only  are  reeopnized  (see  §  21),  in  terms  at  least; 
thoufrh  wiiat  arc  known  under  other  codes  as  "  provisional 
remedies"  exist  in  Califomia  as  incidents  to  an  action.  Wliere 
a  statute  creates  a  new  ri^ht,  and  prescribes  the  remedy  for  its 
violation,  the  remedy  tlius  iirescribed  is  exclusive.  But  wlien  a 
new  remedy  Is  driven  by  statute  for  riplits  of  action  existing  inde- 
pendent of  it,  witliont  exdndin^r  other  remedies  already  known 
to  the  law,  the  statutory  remedy  is  cumidative  merely,  aild  the 
party  may  jjursue  either  at  his  option.  City  of  /anesville  v. 
Fannan,  5.T  Oldo  St.  r,0.">;  Dunn  v.  Kaumacher,  2G  Id.  497;  Portland 
V.  IJailroad  Co..  HO  Me.  485. 

\0L.    i— 1 


§§  4,  5  GENERAL    PUINCirLKS.  3 

it  is  defined  to  be  any  judicial  proceeding,  which,  if  conducted 
to  a  determination,  will  result  in  a  judgment  or  decree."  The 
action  is  said  to  terminate  at  judgment.^ 

§  4.  Actions,  how  divided.  I'rimarily,  actions  are  divided 
into  two  classes:  Civil  and  Criminal.  The  former  only  will  be 
considered  in  this  work;  ajid  the  different  classes  into  which 
they  are  divided,  and  the  mode  of  proceeding  therein,  will  be 
treated  of  hereafter.  A  prosecution  under  a  municipal  ordi- 
nance for  an  offense  not  punishable  l)y  general  statute  is  a  civil 
action.^  A  proceeding  under  United  States  Revised  Statutes, 
§§  2325,  2326,  to  settle  adverse  claims  is,  in  Idaho,  an  action 
at  law,  in  which  a  jury  may  be  demanded  as  a  matter  of  right 
to  try  such  controversy,  and  render  a  general  verdict  therein.^ 
As  used  in  the  Oregon  Code,  the  phrase  "  civil  actions  "  includes 
actions  at  law  or  suits  in  equity  and  all  other  judicial  contro- 
versies in  which  rights  of  property  are  involved,  and  is  employed 
in  contradistinction  to  criminal  action.® 

II.  OF  SPECIAL  PROCEEDINGS  M^HICH  AEE   NOT  ACTIONS. 

§  5.  Wliat  are  special  proceedings.  Remedies  pursued  by  a 
party  which  do  not  result  directly  in  a  judgment,  but  only  in 
establishing  a  right,  or  some  particular  fact,  are  special  pro- 
ceedings. They  include  proceedings  confined  to  courts  of  jus- 
tice, and  from  which  an  appeal  will  lie,  such  as  proceedings 
insfituted  for  the  correction  or  revision  of  erroneous  acts  of  a 
court,  or  officer  appointed  by  a  court,  having  particular  qualifi- 
cations, or  occupying  some  particular  relation  to  the  parties  or 
the  subject-matter,  and  whose  acts  are  in  the  nature  of  adjudi- 
cations upon  which  the  subsequent  proceedings  rest,  however 
erroneous  they  may  be.'^  The  following  are  instances  of  special 
proceedings: 

2  People  V.  County  Judge  of  Rensselaer,  13  How.  Pr.  398;  also, 
Rowe  V.  Blake.  90  Cal.  170;  37  Am.  St.  Rep.  45. 

3  Co.  Litt.  289a.  An  action  is  detMiied  peudin,^  from  tlie  time  of 
its  commencement  until  its  final  determination  upon  appoal,  or  un- 
til the  time  for  appeal  is  i)ast,  unless  tlio  judgment  is  sooner  satis- 
fied.    Naftzger  v.  Gregg,  f)9  Cal.  83. 

4  City  of  Greeley  v.  Hamraan,  12  Col.  94;  City  of  Durango  v. 
Reinsberg,  10  Id.  327;  and  see  Carrol  ton  v.  Rhomberg,  78  Mo.  547; 
Chapin  v.  Waukesha  Co.,  02  Wis.  403. 

r'  Burke  v.  McDonald,  2  Idaho,  310. 

^'  In  re  Feustermaolier  v.  State.  19  Oreg.  504. 

7  Porter  v.  I'urdv,  29  \.  Y.  100;  SO  Am.  Dec.  283. 


I 


3  REMEDIES.  §§  6-11 

§  6.  Admission  to  practice.  Application  for  admission  to 
practice  as  an  attorney  is  a  special  proceeding,  and  an  appeal 
lies  from  an  order  denying  such  application.** 

§  7.  Appraisement.  A  proceeding  by  commissioners  to  ap- 
praise compensation  for  lands  taken  under  the  General  Kailroad 
Act.« 

§  8.  Arbitration  and  award.  A  proceeding  on  arbitration 
is  not  an  action.^*'  It  is  an  adjudication  upon  a  matter  in  con- 
troversy, by  private  individuals  selected  and  appointed  by  the 
parties."  Proceedings  on  arbitrations  are  not  aft'ected  by  the 
Code. ^2  Sueh  proceedings  are,  however,  regulated  by  statute  in 
many  of  the  states. 

§  9.  Assessments.  Proceedings  to  assess  damages  on  laying 
out  a  plankroad,  or  under  road  laws,  are  not  actions.^^ 

§  10.  Attachment.  In  New  York,  a  proceeding  to  enforce  a 
judgment  by  attachment,  as  for  contempt,  is  also  a  special  pro- 
ceeding.^^ 

§  11.  Certiorari.  Crrfioran  is  simply  a  writ  of  review  and  not 
an  action,^^  and  does  not  lie  where  there  is  an  appeal  or  other 
remedy  at  law.^^  At  common  law  it  tries  nothing  but  the  juris- 
diction.^" 

8  Matter  of  Cooper,  22  N.  Yl  GT;  Mattel'  of  the  Graduates,  11  Abb. 
Pr.  301;  revt'i-siiiff  Matter  of  the  Gi-adiiates  of  the  r'nivei-sity,  31 
Barb.  3."i3;  10  Al>b.  Pr.  348;  19  How.  Pr.  97;  Matter  of  the  Graduates 
of  Cohuiilwa,  10  Al>b.  Pr.  S'u;  19  How.  Pr.  13G. 

9  New  York  Cent.  R.  R.  Co.  v.  Maronl.  11  N.  Y.  277. 

10  California  Code,  §§  1281,  1290;  IMoore  v.  Boyer,  42  Ohio  St.  312. 
113   Bl.    Com.    l(i;   3    Steph.   Com.   374;   Uillings  on  Awards,    3, 

r).')-*;.");  Russell's  Arbitrator,  112. 

12  New  York  Code,  §  830. 

13  General  Laws  of  Cal.,  par.  G4.'>1;  Lincoln  V.  Colusa  Co..  28 
Cal.  (;t;2;  fJrlKsby  v.  Bnitnett,  31  id.  40C>;  Ex  parte  Ransom.  3  X.  Y. 
Code  R.  14S;  Ex  parte  Fort  Plain  «fe  Cooperstowu  Pliink  Road  Co., 
id.  148;  see,  also,  New  York  Cent.  R.  R.  Co.  v.  Maroixl,  II  N.  Y. 
27(;;  Matter  of  New  York,  27  N,  Y..  St  Ilej).  188. 

14  CJray  v.  f^ook,  1.'.  Abl).  Pr.  308. 

15  California  Code.  §S  1<m;7.  KXiS;  hqg.  post.  Certiorari. 

i«  1  Hill.  19r>;  Cooper  v.  Kinney,  2  Id.  12;  People  v.  Shoi)ard,  28 
Cal.  11.'.;  .Miliken  v.  Hnlier.  21  id.  ICC;  P<-o]>le  v.  Dwinelle,  29  id. 
G:52;  Pef)i)le  v.  Stlllweil,  19  N.  Y.  .^►31;  On(h'rdonk  v.  Supervisors  of 
Queens,  \  Hill,  19r»;  People  v.  Overseers  of  tjio  Poor,  44  Barb.  4C7; 
People  V.  Boanl  of  Pilots,  37  id.  12C. 

17  State   ex  r,l.   Barnett  v.    Fiftli    Hist.   Ct.,   2  West  Coast   Rep. 


§§  r.\   i;}  GENERAL  PllINCirLES.  4 

§  12.  Confession  of  judgment.  A  judgment  by  Confession 
may  be  entered  without  action.^* 

§  13.  Contempt.  Proceedings  in  punisliment  I'or  contempts 
arc  not  actions.^"  Such  proceedings  may  be  i'or  a  contempt  by 
a  witness  or  a  party  i'or  disobedience  of  an  order  of  a  referee;^*^ 
for  disobedience  of  a  subpoena ;^^  for  refusing  to  testify,  or  to 
allow  ins}wction  of  books;^  i'or  disobeying  a  writ  of  mandate  or 
injunction;^  for  sending  threatening  letter  to  a  grand  jury.^ 

(i30;  Teoplo  v.  Delegates  of  San  Francisco  Fire  Department,  14  Cal. 
479.  Tliat  tlie  California  statute  is  affirmative  of  the  common 
law,  see  People  v.  Board  of  Delegates,  etc.,  14  Cal.  479;  People  v. 
Provines,  34  id.  520,  527.  overniling  People  ex  rcl-  Church  v.  Hester, 
(i  id.  G79.  As  to  power  of  County  Courts  to  grant  writs  of  certiorari, 
see  Wilcox  v.  Oalvland,  49  Cal.  29,  wliere  such  power  is  denied, 
except  in  aid  of  their  appellate  jurisdiction.  It  can  not  be  sub- 
stituted for  appeal.  Id.  As  to  Avhen  it  lies,  see  Cal.  P.  R.  11.  Co. 
V.  O.  P.  R.  R.  Co.,  47  Cal.  .528.  That  District  Courts  and  judges  have 
authority  to  issue  the  writ,  see  Reynolds  v.  County  Court  of  ISan 
.Joaquin,  47  Cal.  604,  and  Gallardo  v.  Hannah,  49  id.  136. 

18  Cal.  Code,  §  1132;  N.  Y.  Code,  §  382;  Gunter  v.  Sanchez,  1  Cal. 
45,  48;  see  Cordier  v.  Schloss,  12  id.  143;  afilrmed  in  S.  C,  18  id. 
580;  and  cited  in  Wilcoxon  v.  Burton,  27  id.  228,  235;  87  Am.  Dec. 
66,  in  which  the  latter  case  was  approved;  Allen  v.  Smillie,  1  Abb. 
Pr.  3.54;  12  How.  Pr.  1,56;  Hill  v.  Northrop,  9  id.  525.  And  the 
statute  must  be  strictly  pursued.  Chapin  v.  Thompson,  20  Cal.  681. 
So  of  proceedings  on  motion,  setting  aside  a  judgment  by  con- 
fession. Bellinap  v.  "Waters,  11  N.  Y.  497;  compare  Bowery  Ex- 
tension Case,  2  Abb.  Pr.  368.  The  pui-pose  and  ti-ue  intei-pretation 
of  the  provisions  of  the  Code  regulating  confessions  of  judgment 
are  explained  in  Hopkins  v.  Nelson,  24  N.  Y.  518;  Neusbaum  v. 
Keim,  id.  32.5,  reversing  S.  C,  1  Hilt.  520;  7  Abb.  Pr.  23. 

19  Cal.  Code  Civ.  Pro.,  §  1209. 

20  Page  V.  Randall,  6  Cal.  32. 

21  Cal.  Code,  §  1991;  Andrews  v.  Andrews,  Col.  &  C.  Cas.  121. 

22  Forbes  v.  Meeker,  2  Edw.  452. 

23McCauley  v.  Brooks,  16  Cal.  11;  Golden  Gate  H.,  etc.,  Co.  v. 
Superior  Court,  65  id.  187. 

2-1  Jn  re  Tyler,  64  Cal.  434.  For  other  acts  which  may  con.stitute 
contempt.s,  see  Cal.  Code,  §  1209;  People  v.  Dorsey,  32  Cal.  296; 
1  Tidd's  Pr.  479,  480;  4  Bl.  Com.  285;  4  Steph.  Com.  348;  Holstein 
v.  Rice,  15  Abb.  Pr.  307;  Gray  v.  Cook,  id.  308;  §  5289,  post.  The 
provisions  of  the  Revised  Statutes  concerning  contempts  in  New 
York  are  not  affected  by  tlie  Code  of  Procedure.  They  are  to  en- 
force civil  remedies  and  protect  the  rights  of  parties.  People  v. 
Compton,  1  Duer,  512;  In  re  Smethurst,  3  Code  R.  55;  2  Sandf.  724. 


5  KKilEUIES.  §§  14-18 

§  14.  Contested  elections.  The  act  giving  jurisdiction  over 
contested  elections  to  the  county  judge  is  constitutional.  It  is 
one  of  the  "  special  cases  "  provided  for  in  the  Constitution.^^ 

§  14a.  Determination  of  heirship.  The  determination  of  the 
heirship  of  claimants  to  an  esta,te,  under  section  166-1  of  the 
California  Code  of  Civil  Procedure,  is  a  "special  proceeding," 
within  the  meaning  of  the  term  as  defined  in  the  Code  of  Civil 
Procedure.^ 

§  15.  Highways.  In  New  York,  an  appeal  before  referees  in 
highway  proceedings  is  not  an  action.^^  Nor  is  a  proceeding 
to  open  streets.^ 

§  16.  Indigent  relative.  The  proceeding  to  compel  one  to 
support  an  indigent  relative  in  such  states  as  have  a  statute  on 
this  subject,  is  a  special  proceeding  under  the  act.^  > 

§  17.  Insolvency  cases.  Insolvency  cases  are  "  special  cases," 
and  it  was  an  exercise  of  legitimate  power  in  the  legislature  to 
confer  jurisdiction  in  such  cases  upon  both  County  and  District 
Courts.^^  Proceedings  in  insolvency  are  not  stricti  juris  either 
proceedings  in  law  or  equity,  but  a  new  remedy  or  proceeding 
created  by  statute.^^ 

§  18.  Joint  debtors.  Proceedings  against  joint  debtors 
after  judgment  are  not  actions.^^  In  proceedings  of  this  char- 
acter, does  the  cause  of  action  or  right  to  proceed  arise  upon 

25  Saunders  v.  Haynes,  13  Cal.  14.5;  approved  as  to  jurisdiction 
in  Stone  v.  Elkins.  24  id.  12;"),  120;  Dorsey  v.  Barry,  id.  4.")2;  and 
cited  in  People  v.  Davis,  1.5  id.  91;  and  approved  ns  to  such  being 
"  sppfial  r-ascs  "  in  Keller  v.  Chapman,  34  id.  G35,  <>40. 

2n  Smith  v.  Westerfield.  S8  Cal.  374. 

27  People  V.  Flake,  14  How.  Pr.  .527. 

2«  In  re  The  Bowery,  12  IIow.  Pr.  97. 

29  Haviland  v.  White,  7  IIow.  Pr.  1.54. 

30  Harper  v.  Freelon,  (>  Cal.  70;  approved  in  McNeil  v.  Borland, 
23  Id.  144.  148;  see,  also.  Frank  v.  Brady,  8  id.  47,  and  People 
ex  rel.  CJrow  v.  Ilasboroiipli,  29  id.  41.5,  418. 

31  Cohen  v.  Barrett,  .5  Cal.  19.5;  api>roved  as  to  jurisdiotion  in 
"  Insolveney  eases "  in  Fnink  v.  Brady,  8  id.  47.  That  oases  in 
insolveney  are  not  e«|Ulty  eases,  approved  in  People  ex  rel-  Crow 
V.  RaslK)ron{:h,  29  Ciil.  418.  A  proeeedinj;  in  insolveney  is  in  the 
nature  of  a  sjieeial  proceedintr  williin  scetion  23  of  the  Code  of  Civil 
Proeedure.     /;)  re  I>enneiy,  S9  Cal.  101. 

32  Cal.  Code,  §§  989-904;  N.  Y.  Code,  §  375. 


§§    l'.»-X>3  GKNKKAI,    I'KINt  ll'LES.  6 

jiulgincut  or  upon  ilic  origmai  deuiaiuiy  The  proceedings  bear 
a  strong  similarity  to  the  action  of  scire  facias,  and  were  no 
doubt  intended  as  a  substitute  tlierei'or.^^  Such  a  proceeding 
is  not  a  new  action,  and  tlie  party  served  can  not  iiave  tlie  actioa 
removed  into  a  federal  court.^'*  The  remedy  by  this  proceeding 
is  merely  cumulative. ^"^ 

§  19.  Probate.  Probate  proceedings  are  not  civil  actions 
within  the  meaning  of  the  Practice  Act.^* 

§  20.  Referees.  A  proceeding  before  referees  is  not  an  ac- 
tion,^''' The  California  statute  concerning  referees  is  in  aid  of 
the  common-law  remedy  by  arbitration,  and  does  not  alter  its 
principles.^^ 

§  21.  Review  of  assessment.  Proceedings  to  review  the  acts 
of  assessors  appointed  to  assess  the  property  of  the  parties  bene- 
fited by  the  construction  of  a  sewer  with  their  proportionate 
expense,  are  not  actions.^^  A  proceeding  to  vacate  a  local  as- 
sessment in  the  city  of  New  York  is  not  a  special  proceeding  in 
the  sense  of  the  Code.^° 

§  22.  Specific  performance.  In  New  York,  proceedings  to 
compel  a  specific  performance  of  contract  of  ancestor  by  heirs 
of  deceased  are  not  actions.*^ 

§  23.  Submission  of  controversy.  Parties  may  without  action 
agree  upon  a  case,  and  present  a  submission  of  the  same  to  any 
court  which  should  have  jurisdiction.^^  Such  a  proceeding  is 
not  an  action.'*^ 

33  Alden  v.  Clark,  11  How.  Pr.  209,  213. 

34  Fairehild  v.  Durand,  8  Abb.  Pr.  305. 

35  Dean  v.  EldridKe,  29  How.  Pr.  218. 

36  Estate  of  Scott,  15  Cat.  220;  Ex  parte  Smith,  53  id.  204;  Car- 
penter V.  Superior  Court,  75  id.  .^>0<;;  see  In  re  Flint,  100  id.  .301. 

37  Cal.  Code,  §  63G;  Plant  v.  Fleming,  20  Cal.  92;  People  v.  Flake, 
14  How.  Ft.  527. 

.38  Tyson  v.  Wells,  2  Cal.  122;  affirmed  in  Headley  v.  Keed,  id. 
322;  Grayson  v.  Guild.  4  id.  122;  Plielps  v.  Peabody,  7  id.  53. 
39  Porter  v.  Purdy,  29  N.  Y.  100;  80  Am.  Dec.  283. 
^ORe  Dodd,  27  N.  Y.  629;  Matter  of  Jetter,  78  id.  601. 

41  Hyatt  V.  Seely,  11  N.  Y.  52. 

42  Cal.  Code,  §  11.38;  Crandall  v.  Amador  County,  20  Cal.  72. 

43  Lang  T.  Ropke,  1  Duer,  701,  702. 


REMEDIES.  §§  34-26 


§  24.  Supplementary  proceedings.        Proceedings  supplement- 
ary to  execution  are  special  proceedings.^* 

§  25.  Testimony.      Proceedings  to  perpetuate  testimony    are 
not  actions.'*^ 

III.  OF  PROVISIONAL  REMEDIES. 

§  26.  Provisional  remedies,  what  are.  Proceedings  before 
judgment  or  decree,  in  courts  exercising  equity  powers,  to  pro- 
vide for  the  safety  and  preservation  of  property  in  the  posses- 
sion of  an  adverse  party,  or  to  preserve  it  during  the  pendency 
of  an  appeal,  by  the  appointment  of  a  receiver  or  other  like  offi- 
cer, and,  in  some  cases,  the  disposition  of  the  property  after 
judgment  or  decree,  and  also  restraining  orders  or  injunctions 
pending  the  action,  which,  though  now  regulated  by  statute  in 
most  of  the  states,  existed  independently  of  it,  as.  a  necessary 
incident  to  equitable  jurisdiction.  Tliese  proceedings,  however, 
so  far  as  they  are  defined  or  regulated  by  statute,  as  well  as 
others  created  by  the  statute,  are  usually  called  "provisional 
remedies." 

The  provisional  remedies  created  by  the  statut/e,  or  which  have 
been  adopted  from  the  common  law,  are  intended  to  secure 
in  advance  the  enforcement  of  the  judgment  which  is  sought 
to  be  obtained.  Of  these,  arrest  and  bail,  attachment  of  the 
defendant's  property,  and  replevin  or  claim  and  delivery,  are 
familiar  examples.  These  provisional  remedies  will  be  treated 
of  in  connection  with  the  actions  in  which  they  may  be  re- 
sorted to. 

44  Gould  V.  Chapin,  4  IIow.  Vv.  isr.;  Davis  v.  Turner,  id.  190; 
coutra,  Dresser  v.  Van  I'elt,  1.")  id.  11>.  Sui>i)lenien1ary  prooeedings, 
wlK'flicr  iiad  before  or  aftor  the  return  of  tlif  exocution  unsatisliod, 
are  uot  in  tlie  nature  of  a  new  action.  Collins  v.  Anjxell,  72  Cal. 
513.  The  design  of  such  pnx-ecdintrs  is  to  summarily  determine 
the  property  of  the  debtor  liable  to  execution.  Feldenheiinor  v. 
Tresscl.  *',  Dak.  2()."..  Important  issues  of  facts  respecting'  property 
rljihts  and  botta  fides  of  transactions  may  not  be  determined  In  such 
proceedings  without  jtleadings  or  issues  joined.  Wallace  v.  Mc- 
Lau^rhlin.  12  Utah,  411. 

45  Cal.  Code,  §§  2083,  2084. 


CHAPTER  II. 

JURISDICTION. 

§  27.  Jiirisdiction,  what  is.  Jurisdiction  is  the  power  to  hear 
and  determine  a  ease.^  In  a  more  general  sense  it  is  the  power 
to  make  law;  the  power  to  legislate  or  govern;  the  power  or 
right  to  exercise  authority.^  Each  branch  of  government  has 
its  functions  assigned,  and  is  beyond  the  control  of  the  other 
departments  of  government.^  Thus  legislative  functions  can 
not  bo  exercised  by  the  judiciary.'*  Nor  can  the  courts  of  jus- 
tice interfere  with  the  political  powers  of  the  legislature.^  A 
marked  distinction  exists  between  jurisdiction  and  the  exercise 
of  jurisdiction.  When  jurisdiction  has  attached,  all  that  fol- 
lows is  but  the  exercise  of  jurisdiction,  but  jurisdiction  does 
not  attach  until  the  conditions  upon  which  it  depends  are  ful- 
filled.« 

§  28.  Jurisdiction  in  general.  The  jurisdiction  of  a  court 
will  generally  be  presumed  in  the  case  of  superior  courts,  or 
courts  of  general  jurisdiction,  where  the  want  of  it  does  not 
appear  upon  the  record.'^  But  this  presumption  may  be  rebut- 
ted by  the  record  of  the  entire  case  disclosing  a  want  of  juris- 

1  United  States  v.  Arredondo,  G  Pet.  691,  702;  Giignon's  Lessee  v. 
Astor.  2  How.  319,  338;  O.  P.  R.  R.  Co.  v.  Placer  Co.,  43  Cal.  305; 
Sheror  v.  Superior  Court,  96  id.  653;  State  v.  Whitford,  54  Wis. 
157;  Mining  Co.  v.  Sclioolfield.  10  Col.  46. 

2  Taylor  v.  Horde,  1  Burr.  113. 

3  Parsons  v.  Toulumne  County  Water  Co.,  5  Cal.  43;  G3  Am.  Dec. 
76. 

4  People  V.  Town  of  Nevada,  6  Cal.  143;  approved  in  Colton  v. 
Rossi,  9  id.  595;  Stone  v.  Elkins,  24  id.  125;  People  v.  Sanderson, 
30  id.  167. 

f>  Nougnes  v.  Douglass,  7  Cal.  65;  cited  in  McCauley  v.  Brooks, 
16  id.  11,  43;  Napa  Valley  R.  R.  Co.  v.  Napa  Co.,  30  id.  435. 

0  Furjreson  v.  .Tones,  17  Oreg.  204;  11  Am.  St.  Rep.  808.  Juris- 
diftion  carries  witli  it  the  power  to  decide  wrong  as  well  as  right. 
Nicklin  v.  Ilobin,  13  Oreg.  406. 

^  Nelson  v.  Lemon.  10  Cal.  .50;  Nelson  v.  Mitchell,  id.  93;  ,Tohn- 
Bon  V.  Sepulveda,  5  id.  149;  Grewell  v.  Henderson,  7  id.  290;  Gray 
V.  Hawes,  8  id.  562;  Carpentier  v.  Oakland,  .30  id.  439;  approved 
in  Hahn  v.  Kelly,  34  id.  391;  94  Am.  Dec.  742,   which  authority 


9  JUKISDICTION.  §  39 

diction.*  And  where  jurisdiction  is  limited  by  the  Constitution 
or  by  statute,  the  consent  of  parties  can  not  confer  it  upon  the 
court,  except  where  the  limitation  is  in  regard  to  certain  per- 
sons. In  such  case  they  may,  if  competent,  waive  their  exemp- 
tion and  confer  jurisdiction.^  And  conversely  the  agreement 
of  parties  can  not  operate  to  divest  a  court  of  its  jurisdiction.^'^ 
So  where  a  court  of  general  jurisdiction  has  summary  powers 
conferred  upon  it,  which  are  wholly  derived  from  statute,  and 
not  exercised  according  to  the  course  of  the  common  Jaw,  or 
are  no  part  of  its  general  jurisdiction,  its  decisions  must  be  re- 
garded and  treated  like  those  of  courts  of  limited  and  special 
jurisdiction."  The  distinction  which  exists  between  the  want 
of  jurisdiction  and  jurisdiction  irregularly  acquired  or  exercised, 
should  be  carefully  noted.  In  the  first  case,  the  judgment  can 
be  attacked  in  any  form  directly  or  collaterally;  in  the  second, 
only  by  direct  proceeding  in  the  court  which  rendered  it.^^  The 
rule  is,  that  when  judicial  tribunals  have  no  jurisdiction  of  the 
subject-matter  on  which  they  assume  to  act,  their  proceedings 
are  absolutely  void;  but,  when  they  have  jurisdiction  of  the  sub- 
ject-matter, irregularities  or  illegality  in  their  proceedings  does 
not  render  them  absolutely  void,  though  they  may  be  avoided 
by  timely  and  proper  oljjection.^^ 

§  29.  Jurisdiction  at  chambers.  Tlie  general  rule  is,  that  all 
judicial  business  must  be  transacted  in  court,  and  that  there 
must  be  some  express  warrant  of  the  statute  to  authorize  any 
of  it  to  be  transacted  at  chambers.^*     A  judge  at  chambers 

cites  Forbes  v.  Hyde,  31  Cal.  342;  Sharp  v.  DauRney,  33  id.  505; 
and  see  Clark  v.  Sawyer,  48  id.  133;  Hughes  v.  Cummin.cs,  1  West 
Coast  Hep.  (MS;  Smith  v.  Mnntoya,  3  N.  Mox.  30;  White  v.  Espey,  21 
Orofr.  o.'ji;  K^.jiy  V  Kelly,  ici  Mass.  118;  42  Am.  St.  Rep.  396;  Estate 
of  Kifhlioff,  101  Cal.  (;00. 

«  Siiiitli  V.  Montoya,  3  N.  Mex.  39;  Atchison,  etc.,  R.  R.  Co.  v. 
Niciiolls,  8  C^l.  188. 

f»  <;ray  v.  Hawos,  8  Cal.  '>iV2:  Xorwoixl  v.  Kenfield,  34  id.  329; 
Bates  V.  Cape,  40  Id.  183. 

i'>  Mtildrow  V.  Norris,  2  Cal.  74;  HO  Am.  Dec.  313. 

11  Ftirposon  v.  .Tones,  17  Greg.  204;  11  Am.  St.  Rep.  808. 

12  Wiiitwell  V.  P.arltier,  7  Cal.  ."Vl,  04;  approved  in  Peck  v.  Strauss, 
33  id.  (V^'k 

n  Town  of  Wayne  v.  Caldw.'li,  1  S.  Dak.  483;  30  Am.  St.  Rep. 
7r.o. 

It  I.nrco  v.  Casaneuava,  30  Cal.  r>00;  Norwood  v.  Kenfield,  34  id. 
332. 

2 


§  30  GENKKAL    I'UINCirLES.  10 

has  no  power  to  make  an  order  directing  tlio  clerk  of  his  court 
to  enter  in  the  minutes  of  the  court  nunc  pro  time,  an  order 
alleged  to  have  been  made  in  open  court. ^'^  Nor  to  make  an 
order  setting  aside  an  execution  issued  on  a  judgment,  and 
perpetually  staying  the  enforcement  of  the  sanie.^"  Nor  to 
entertain  motions  to  strike  out  pleadings  or  parts  of  pleadings.^^ 
In  Washington  territory  a  judge  of  the  district  court  has  power 
to  render  judgment  at  his  chambers,  and  out  of  term,  in  a  case 
where  the  defendant  has  made  default.^^  A  District  Court  in. 
Idaho  has  no  jurisdiction  to  hear  a  proceeding  for  the  condemna- 
tion of  lands,  or  to  enter  judgment  or  a  decree  therein,  under  the 
statute  (Rev.  Stats.,  Idaho,  §§  3890-3910),  at  chambers.^^ 

§  30.  Concurrent  jurisdiction.  There  is  nothing  in  the 
nature  of  jurisdiction  which  renders  it  exclusive.^^  But,  on  the 
contrary,  it  may  be  concurrent.^^  The  legislature,  however,  can 
not  confer  on  one  court  the  functions  and  powers  which  the 
Constitution  has  given  to  another,  where  that  jurisdiction  is  ex- 
clusive.^2  But  if  exclusive  jurisdiction  be  not  conferred  upon 
a  court  by  the  Constitution,  then  the  legislature  may  confer 
on  other  courts  the  powers  and  functions  which  the  Constitu- 
tion has  conferred  on  that  court.^^     The  grant  of  original  juris- 

ir.  Ilegelor  v.  Heuckell,  27  Cal.  491. 

16  Bond  V.  racheco,  30  Cal.  530;  Norwood  v.  Kenfieid,  34  id.  329, 
332. 

17  Larco  v.  Casaneuava,  30  Cal.  5G0;  Norwood  v.  Kenfieid,  34  id. 
332. 

IS  :Murne  v.  Sohwabacher  Bros.  &  Co.,  2  West  Coast  Rep.  799. 

19  Washington,  etc.,  K.  R.  Co.  v.  Coeur  d'Alene  Railway  &  Nav, 
Co.,  2  Idalio,  991.  A  judge's  chambers  are  not  confined  to  the  place 
for  the  usual  transaction  of  judicial  business  not  re(iuired  to  be 
done  in  open  court,  but  chamber  l)usiuess  may  be  done  wherever 
the  judge  may  be  found  within  tlie  proper  jurisdiction  of  the  court. 
In  re  Lux,  100  Cal.  593;  Von  Schmidt  v.  Widbor,  99  id.  511;  In  re 
Neagle.  14  Sawyer,  265. 

20  Delafield  v.  State  of  Illinois,  2  Hill,  1.57,  104. 

21  rorry  v.  Ames,  26  Cal.  372;  approved  in  Cariaga  v.  Dryden, 
30  id.  246;  Knowles  v.  Yeates,  31  id.  90;  and  Courtwright  v.  Bear 
River  &  Auburn  Water  &  Min.  Co.,  30  id.  .58.5. 

22  Courtwright  v.  Bear  River  &  Auburn  Water  Co.,  30  Cal.  .580. 

23  Perry  v.  Ames.  26  Cal.  372;  see,  also,  CourtAvright  v.  Bear 
River  <&  Auburn  Water  &  Min.  Co.,  30  id.  585.  Tliis  has  been  practi- 
cally demonstrated  in  American  Co.  v.  Bradford,  27  id.  360;  cited  in 
Hill  V.  Smith,  id.  476;  see,  also.  People  v.  Davidson,  30  id.  379; 
Warner  v.  Steamer  Uncle  Sam,  9  id.  697. 


11  JUEISDICTION".  §  31 

diction  in  the  Constitution,  to  a  particular  court,  of  a  class  of 
eases,  without  any  words  excluding  other  courts  from  exercising 
Jurisdiction  in  the  same  cases,  does  not  necessarily  deprive  other 
courts  of  concurrent  jurisdiction  in  such  cases. ^  Thus  juris- 
diction 1)1  rem  may  exist  in  several  courts  at  the  same  time  on 
the  same  subject.^  But  the  court  whose  mesne  or  final  process 
has  made  the  first  actual  seizure  of  the  thing,  must  have  ex- 
clusive power  over  its  disposal  and  the  distribution  of  the  fund 
arising  therefrom,  and  the  judgments  of  all  other  courts,  when 
properly  authenticated  and  filed  in  the  court  having  custody  of 
the  fund,  must  be  regarded  as  complete  adjudications  of  the 
subject-matter  of  litigation,  and  be  entitled  to  distribution  ac- 
cordingly.^ And  an  action  for  the  nondelivery  of  freight  may 
exist  in  the  District  Court  of  the  United  States  contemporane- 
ously with  an  action  for  freight  money  in  a  state  court,  without 
fear  or  danger  of  any  collision  or  clashing  of  jurisdiction.^''' 
As  a  general  rule,  however,  courts  can  not  interfere  with  the 
judgments  or  decrees  of  other  courts  of  concurrent  juris- 
diction.^ 

§  31.  Jurisdiction  of  state  courts.  State  courts  have  juris- 
diction in  the  following  cases,  among  others,  over  subject- 
matter  situated  within  the  exclusive  control  of  the  United 
States  government,  or  over  parties,  subjects  of  a  foreign  gov- 
ernment, resident  within  the  state: 

(1)  Assault  mid  battery. —  In  an  action  for  assault  and  battery 

24  Courtwright  v.  Bear  Kiver  &  Auburn  Water  &  Miii.  Co.,  30 
Cal.  .573. 

25  Avorill  V.  Tlie  Hartford,  2  Cal.  309;  affirmed  in  Taylor  v. 
.Steamer  Columbia.  .">  id.  272;  Meiggs  v.  Scannoll,  7  id.  408;  Fisher 
v.  Wbitc,  8  id.  422. 

2fi  Uusscll  V.  .Mvarez,  .">  Cal.  4S. 

27  Id.  State  courts  liave  concurrent  jurisdiction  with  the  federal 
courts  to  collect  the  assets  of  a  b.'udvrupt,  wlietlier  legal  or  equi- 
table. Wente  V.  YouiiLT.  12  Hiiii.  220.  As  between  courts  of  con- 
current jurisdiction,  tlic  coiiit  lii-st  acquiring  jurisdiction  will 
retain  it  throughout.  I.nudcu  Canal  Co.  v.  Ditch  Co.,  22  Col.  102; 
Haywood  v.  Johnson,  41  Mich.  598;  see  Brown  v.  Campbell,  110 
Cal.  ('A4. 

2s  Anthony  v.  Dunlap.  8  Cal.  20;  afflrmed  in  Iihlfelder  v.  Levy, 
9  Id.  014;  Hevalk  v.  Kraemer,  S  id.  (Ml;  (.s  Am.  Dec.  ;{(I4.  For  a 
more  exhaustivo  discussion  ctf  the  exclusive  and  concurrent  jiu'ls- 
fliction  of  rotu-ts  than  the  limits  ov  ])urposes  of  this  work  admit 
of.  see  1   Pomfroy's  K<i.  Jur.,  §§  140-189. 


§  31  GENERAL    riUNCIPLES.  13 

in  a  rnitod  States  navy  yard,  although  the  state  has  ceded 
exclusive  jurisdiction  of  that  place  to  the  United  States.-^  So, 
also,  state  courts  have  jurisdiction  of  crimes  couuuitted  in  the 
United  States  military  reservation  of  Fort  Leavenworth.^*^  The 
act  of  the  legislature,  ceding  the  navy  yard  at  Brooklyn  to  the 
United  States  —  which  provides  that  the  cession  "  shall  not 
prevent  the  operation  of  the  laws  of  the  state "  within  the 
same  —  has  the  eifcct  of  preserving  the  jurisdiction  of  the 
state  over  offenses  committed  on.  board  a  government  ship  in 
the  navy  yard,  and  over  the  person  of  the  olfender.^^ 

(2)  Contracts. —  State  courts  have  jurisdiction  over  actions 
on  a  contract  made  in  a  foreign  country  ;^^  or  of  an  action  on 
a  policy  of  insurance  issued  in  the  state  by  a  resident  agent 
of  a  foreign  insurance  company.^^ 

(3)  Customs  and  duties. —  Of  actions  by  collectors  of  United 
States  customs  upon  receiptor's  agreement;^*  and  of  actions  on 
bonds  given  for  duties  to  the  United  States.^^ 

(4)  Foreign  governments  may  sue  and  be  sued  in  state  courts 
in  their  federative  names. ^^ 

(5)  Foreign  residents. —  State  courts  have  jurisdiction  in  ac- 
tions against  foreign  executors  or  administrators  who  are  resi- 
dents of  the  state.^''' 

(())  Habeas  corpus. —  To  discharge  on  habeas  corpus  persons 
enlisted  in  the  United  States  army.^^ 

29  ArmstroDj?  v.  Foote,  11  Abb.  Pi'.  384;  but  see  Dibble  v.  Clapp, 
31  How.  Pr.  420. 

30  Clay  v.  State,  4  Kan.  49, 

31  People  V.  Lane,  1  Edm.  116;  see  chap.  5G.  Cal.  St.  1897. 

32  Skinner  v.  Tinker    34  Barb.  333. 

33  Burns  v.  Provincial  Insurance  Co.,  35  Barb.  525;  Watson  v. 
Cal)0t  Bank,  9  Sandf.  423. 

34  Sailly  V.  Cleveland,  10  Wend.  155. 

35  I'nited  States  v.  Dodge,  14  .Tolms.  95. 

30  Republic  of  Mexico  v.  An-angois,  11  How.  Pr.  1;  Mills  v. 
Thursby,  2  Abb.  Pr.  437;  Pi.epublio  of  Mexico  v.  Arrangois,  3  id. 
470;  Manning  v.  State  of  Nicaragua,  14  How.  Pr.  517;  Delafield  v. 
State  of  Illinois,  2G  Wend.  192;  BuiTall  v.  Jewett,  2  Paige  Ch.  134; 
Gibson  v.  Woodworth    8  id.  132. 

37  Culick  V.  Gulick,  33  Barb.  92;  21  How.  Pr.  22;  Montalvan  v. 
Clover,  32  Barb.  190;  Sere  v.  Coit.  5  Abb.  Pr.  482.  The  courts  of 
New  York  have  no  jurisdiction  in  an  action  at  law  against  foreign 
executors  or  administrators.     Metcalf  v.  Clark,  41  Barb.  45. 

3S7?e  Carlton.  7  Cow.  471;  Re  Dabl),  12  Abb.  Pr.  113;  Re  Phelan, 
9   id.   280;  United    States  v.   Wyngall,   5   Hill,   IG;  Re  Ferguson,   9 


13  JURISDICTION.  §  31 

(7)  Property  out  of  staic. —  Where  jurisdiction  of  the  person 
is  acquired,  state  courts  have  equitable  jurisdiction  in  actions 
respecting  real  estate,  even  if  the  property  is  situated  out  of 
the  state.^^  They  have  jurisdiction  in  an  action  for  a  breach 
of  covenant  to  convey  real,  property  situated  in  a  foreign  statc*^ 
Thus,  in  the  leading  case  of  Penn  v.  Lord  Baltimore,  1  Ves. 
Sen.  444,  specific  performance  of  a  contract  for  lands  lying  in 
America  was  decreed  in  England.  So,  also,  in  the  case  of 
The  Earl  of  Kildare  v.  Sir  Morrice  Eustace  and  Fitzgerald,  1 
A^ern.  419,  it  was  held  that  a  trust  in  relation  to  lands  lying 
in  Ireland  may  be  enforced  in  England  if  the  trustee  live  in 
England.  So  if  the  subject  of  the  contract  or  trust  be  within 
the  jurisdiction,  but  the  parties  are  not.^^  But  the  state  courts 
have  no  jurisdiction  of  an  action  for  injury  to  real  estate  out 
of  that  statc-^^ 

(8)  Torts  generally. —  State  courts  have  jurisdiction  of  ac- 
tions for  torts  committed  in  a  foreign  state,  where  the  defendant 
is  served  with  process  within  the  state.^^  So,  also,  for  a  fraud- 
ulent conspiracy  formed  in  another  state.^^ 

(9)  United  States  or  U.  S.  officers. —  The  United  States  or 
a  state  may  consent  to  be  sued  in  a  state  court.^^  Or  an  action 
may  be  maintained  in  a  state  court  against  officers  of  the  United 
States  government  in  certain  cases.*^ 

Johns.  239.  As  to  jurisdiction  by  habeas  corpus  on  a  commitment 
by  a  court  of  the  Uuitt'd  States,  see  Re  Barrett,  42  Barb.  479;  In  re 
Hu.sted,  1  .Johns.  Cas.  130;  Re  Ilopson,  40  Barb.  .S4. 

39  Mussina  v.  Belden.  6  Abb.  Pr.  165;  Ward  v.  Ai-redondo,  Hopk. 
Cli.  24.'};  Shattuck  v.  Cassidy,  3  Edw.  Ch.  152;  Slatter  v.  Carroll,  2 
Sandf.  Ch.  57.S;  De  Klyn  v.  Watkins,  3  id.  185;  D'lvernois  v. 
Leavitt,  23  Barb.  03;     see  §  55,  post. 

40  Mott  v.  CoddiuRton  1  Abb.  Pr.  (\.  S.)  200;  Bailey  v.  Rider, 
10  N.  Y.  3ra;  Gardner  v.  Ofiden,  22  id.  327;  7S  Am.  Dec.  192;  Newton 
V.  Bronson,  13  N.  Y.  587;  07  Am.  Dec.  89;  Fenner  v.  Sanborn,  37 
Barb.  010. 

41  Arplasse  v.  Muschanip.  1  Vern.  75;  Toiler  v.  Carteret,  2  id. 
494;  WaKUcr  v.  Watts,  2  Crancli  C.  C.  148;  Cleveland  v.  Burnell, 
25  Barb.  .532;  Newton  v.  Bronson,  13  N.  Y.  587;  07  Am.  Dec.  89; 
Bonrlxo  v.  MrLnntrhlin,  Cal.  Sup.  Ct.,  .July  Term    1809. 

42  Mott  V.  Co<ldlnj,'t(m,  1  Abb.  Pr.  (N.  S.)  290;  Watts  v.  Kinney, 
0  IIIII.  S2. 

4.1  So    lu'ld    in    New    Vorl<.     Ilnll    v.    Vreeland,    18    A])b.    Pr.    182; 
Latourftte  v.  Clnrk.  45  Barb.  32:{. 
44  Mus.sjna  v.  Boldon,  0  Abb.   Pr.   10.5. 
46  People  of  Mioh'pan  v.  Phoenix  Bank,  4  Bosw.  .^(;3. 
4«  Ripley  V.  Celston,  !•  .Tolnis.   201 ;  0  Am.   Dec.  271;   In  re  Stary, 


§§  ;{•.>,  •.y^  QEXERAl.   PRINCIPLES.  14 

§  32.  Within  the  jurisdiction  of  the  court  means  within  the 
state."'"  lUit  whenever  the  ytalute  preseribcs  certain  speci- 
lic  acts  to  be  clone  as  })rereqiiisites  to  the  acquiring  of  jurisdic- 
tion, such  acts  must  be  substantially  performed  in  the  manner 
prescribed."***  The  jurisdiction  of  state  courts  extends  to  hear- 
ing and  determining  cases  left  pending  in  the  late  United  States 
Territorial  Courts."*'-* 

§  33.  Constitutional  jurisdiction  of  California  courts.  In  Cali- 
fornia, prior  to  tho  adoption,  in  1879,  of  the  present  Con- 
stitution, the  jurisdiction  of  the  several  courts  was  fixed  by  the 
Constitution,  which  prescribed  that  "  the  judicial  powers  of  the 
state  shall  be  vested  in  a  Supreme  Court,  in  District  Courts,  in 
County  Courts,  in  Probate  Courts,  and  in  justices  of  the  peace, 
and  in  such  recorders  and  other  inferior  courts  as  the  legisla- 
ture may  establish  in  any  incorporated  city  or  town."'^''  The 
Constitution  of  1879  made  radical  changes  in  the  judicial  sys- 
tem of  the  state.  Among  other  things,  it  abolished  the  Dis- 
trict, County,  and  Probate  Courts,  as  separate  tribunals,  and 
vested  the  jurisdiction  formerly  exercised  by  them  in  Superior 
Courts.  The  present  Constitution  pro'ades  "  that  the  judicial 
power  of  the  state  shall  be  vested  in  the  Senate  sitting  as  a 
court  of  impeachment,  in  a  Supreme  Court,  Superior  Courts, 
justices  of  the  peace,  and  such  inferior  courts  as  the  legislature 
may  establish  in  any  incorporated  city  or  town,  or  city  or 
county."^^  Under  its  former  judicial  system,  the  California 
coiuts  established  several  propositions  which  are  equally  ap- 
plicable to  the  system  now  in  existence.  Among  such  proposi- 
tions are  that  the  legislature  can  not  confer  other  than  judicial 
functions    upon    any    court. ^^     That    municipal    and    inferior 

10  .Johns.  .32.S;  Iloyt  v.  Gelston,  13  id.  141;  Wilson  v.  McKenzie, 
7  Iim,  9.5;  42  Am.  Dec.  51;  Teall  v.  Felton,  1  N.  Y.  .537;  49  Am. 
Dec.  3.52:  McButt  v.  Murray,  10  Abb.  I'r.  19(>. 

4T  People  V.  McCauley,  1  Cal.  380;  Stevens  v.  Irwin,  12  id.  306. 

48  Steel  v.  Steel,  1  Nev.  27;  Paul  v.  Anustroug,  id.  82. 

40  Hastings  v.  Johnson,  2  Nev.  190.  State  courts  have  no  juris- 
diction to  declare  rights  of  adverse  claimants  to  public  lands. 
Grand  in  v.  La  Bar,  3  X.  Dale.  44G. 

so  Cal.  Const,  (old),  art.  G,  §  1. 

ci  Cal.  Const.  ri879).  art.  fl,  §  1. 

f'2  So  held  in  Burgoyne  v.  Supervisors  of  San  Francisco,  5  Cal.  9; 
■which  was  affirmed  in  Exline  v.  Smith,  id.  113;  People  v.  Apple- 
gate,  id.  2f).5;  Dickey  v.  Hurlburt,  id.  344;  Thompson  v.  Williams, 
6  id.   89;   People   v.   Town   of   Nevada,   id.    144;   Tuolumne   Co.   v. 


15  JURISDICTIOIf.  §  34 

courts  can  only  be  of  inferior,  limited,  and  special  jurisdiction, 
and  can  not  go  beyond  the  power  conferred  upon  them  by  stat- 
ute, nor  can  they  assume  power  by  implication.^^  Where  the 
statute  creating  a  new  right  and  a  particular  remedy  for  viola- 
tion thereof,  provides  that  the  remedy  must  be  pursued  in  a 
particular  court,  no  other  court  has  jurisdiction.^^  In  such  case, 
the  statute  must  be  strictly  pursued.^^  The  Constitution  not 
having  defined  the  jurisdiction  of  the  municipal  courts  au- 
thorized to  be  established,  it  is  left  to  be  regulated  by  the  legis- 
lature under  its  general  powers.^^ 

§  34.  Formation  of  the  California  Supreme  Court.  The  Su- 
preme Court  of  California  as  it  exists  under  the  present  Con- 
stitution consists  of  a  chief  justice  and  six  associate  justices. 
The  court  may  sit  in  department  and  in  bank,  and  is  always 
open  for  the  transaction  of  business.  There  are  two  depart- 
ments, denominated,  respectively,  department  one  and  depart- 
ment two.  The  chief  justice  is  empowered  to  assign  three  of  the 
associate  justices  to  each  department.  Such  assignment  may 
be  changed  by  him  from  time  to  time,  and  the  associate  justices 
may  interchange  among  themselves  by  agreement.  Each  de- 
partment has  power  to  hear  and  determine  causes  and  all  ques- 
tions arising  therein,  subject  to  the  constitutional  provisions  in 
relation  to  the  court  in  bank.     The  presence  of  three  justices 

Stanilaus  Co.,  id.  442;  Plielan  v.  San  Francisco,  id.  540;  Hardeu- 
burg  V.  Kldd,  10  id.  403;  People  v.  Bircham,  12  id.  55;  Plielan  v. 
San  Francisco,  20  Id.  42;  People  v.  Sanderson,  30  id.  167;  but  in 
People  v.  Provines,  34  id.  .525,  the  case  of  Burgoync  v.  Supervisors 
of  San  Francisco  was  commented  on  and  overruled  (obiter  dictum); 
sec,  also,  I'eojjle  v.  Busli,  40  id.  .S44. 

M  Meyer  v.  Kalkniaim,  (!  Tal.  ,5S2,  cited  in  Konyon  v.  Wolty,  20 
id.  040;  81  Am.  Dec.  137:  Court wrifflit  v.  Bear  River  &  Auburn 
Water  &  Min.  Co.,  .30  Cal.  579;  Winter  v.  Fitzpatriclc,  35  id.  209; 
Morley  v.  Kllxins,  37  id.  4.54.  Where  a  pnvticular  jurisdiction  is  con- 
ferred upon  an  Inferior  court  or  trilninal,  its  decision,  when  actlnjr 
wltliin  its  jniisdictlon,  is  final,  unless  provision  is  made  for  an  ap- 
peal from  such  decision.  City  of  Huron  v.  Carter,  5  S.  Dak.  4;  Min- 
ing Co.  v.  Riiilioad  Co..  2  id.  510;  sec  Bdser  v.  Iloff.sclincider,  104 
Cal.  4.55.  Tlic  term  "  municipal  courts  "  includes  mayors'  and  re- 
corder's courts.  T'ridi.'is  v.  Morrill,  22  Cal.  473;  ;ipi)rovcd  in  Uridi.-is 
V.  Bu'/ee,  Cal.  Sup.  Cf..  .Tuly  'Perm.  1.S03;  and  cited  in  People  v.  Pro- 
vines,  .34  Cal.  520. 

.'••4  Siiiltli  v.  Omnil.us  I!.   It.  ("o.,  30  Cal.  281. 

r-'.  Cohen  v.  Barrett.  5  C;.I.   in.'. 

eorrldias  v.  Morrill,  22  C;il.  473. 


§  35  GENERAL   PRINCIPLES.  16 

is  necessary  to  trausaet  auy  business  in  cither  of  the  depart- 
ments, except  such  as  may,  be  done  at  chambers,  and  the  con- 
currence of  three  justices  is  necessary  to  i)ronounce  a  judgment. 
The  chief  justice  apportions  the  business  to  the  departments, 
and  may,  in  his  discretion,  order  any  cause  pending  before  the 
court  to  be  heard  and  decided  by  tlie  court  in  bank.  The  order 
may  be  made  before  or  after  judgment  pronounced  by  a  depart- 
ment; but  wliere  a  cause  has  been  allotted  to  one  of  the  depart- 
ments, and  a  judgment  pronounced  thereon,  the  order  must  be 
made  within  thirty  days  after  such  judgment,  and  concurred  in 
by  two  of  the  justices,  and  if  so  made  it  shall  have  the  effect  to 
vacate  and  set  aside  the  judgment.  Any  four  justices  may, 
either  before  or  after  judgment  by  a  department,  order  a  case 
to  be  heard  in  bank.  If  the  order  be  not  made  within  the 
time  above  limited,  the  judgment  is  final.  No  judgment  by  a 
department  becomes  final  until  the  expiration  of  the  period  of 
thirty  days,  unless  approved  by  the  chief  justice,  in  writing, 
with  the  concurrence  of  two  associated  justices.  The  chief 
justice  may  convene  the  court  in  bank  at  any  time,  and  is  the 
presiding  justice  of  the  court  when  so  convened.  The  concur- 
rence of  four  justices  present  at  the  argument  is  necessary  to 
pronounce  a  judgment  in  bank;  hut  if  four  justices,  so  present, 
do  not  concur  in  a  judgment,  then  all  the  justices  qualified  to 
sit  in  the  cause  shall  hear  the  argument;  but  to  render  a  judg- 
ment a  concurrence  of  four  judges  is  necessary.  In  the  deter- 
mination of  causes  all  decisions  of  the  court  in  bank  or  in  de- 
partments must  be  given  in  writing,  and  the  grounds,  of  the 
decisions  shall  be  stated.  The  chief  justice  may  sit  in  either 
department,  and  shall  preside  when  so  sitting,  but  the  justices 
assigned  to  each  department  shall  select  one  of  their  number 
as  presiding  justice.  In  case  of  the  absence  of  the  chief  jus- 
tice from  the  place  at  which  the  court  is  held,  or  his  inability 
to  act,  the  associate  justices  shall  select  one  of  their  own  niim- 
ber  to  perform  the  duties  and  exercise  the  powers  of  the  chief 
justice  during  such  absence  or  inability  to  act.^^ 

§  35.  Election  and  term,  of  office  of  justices.  The  chief  jus- 
tice and  the  associate  justices  of  the  California  Supreme 
Court  are  elected  by  the  qualified  electors  of  the  state  at  large 
at  the  general  state  elections,  at  the  times  and  places  at  which 
state  officers  are  elected.     Their  terms  of  office  shall  be  twelve 

57Cal.  Const.  (1879),  art.  6,  §  2. 


17  JURISDICTION".  §  36 

years,  from  and  after  the  first  :Mouday  after  the  1st  day  of 
January  next  succeeding  their  election;  provided,  that  the  six 
associate  justices  elected  at  the  first  election  shall  at  their  first 
meeting  so  classify  themselves,  by  lot,  that  two  of  them  shall 
go  out  of  office  at  the  end  of  four  years,  two  of  them  at  the  end 
of  eight  years,  and  two  of  them  at  the  end  of  twelve  years.  If 
a  vacancy  occur  in  the  office  of  a  justice,  the  governor  shall  ap- 
point a  person  to  hold  the  office  until  the  election  and  qualifica- 
tion of  a  justice  to  fill  the  vacancy,  which  election  shall  take 
place  at  the  next  succeeding  general  election;  and  the  justice 
so  elected  shall  hold  the  office  for, the  remainder  of  the  unex- 
pired term.  The  first  election  of  justices  under  the  present 
Constitution  was  had  at  the  first  general  election  after  the  adop- 
tion and  ratification  of  the  Constitution  of  1879.^^ 

§  36.  Jurisdiction  of  California  Supreme  Court.  In  general, 
the  Supreme  Court  of  California  is  clothed  by  the  Constitution 
with  the  powers  and  jurisdiction  of  the  Courts  of  Chancery  and 
of  King's  Bench  in  England.^''  Its  jurisdiction  is  original  to 
a  certain  extent,  but  mainly  appellate.  The  Constitution  gives 
it  appellate  jurisdiction  in  all  cases  in  equity,  except  such  as 
arise  in  Justices'  Courts;  also,  in  all  cases  at  law  which  involve 
the  title  or  possession  of  real  estate,^"  or  the  legality  of  any 
tax,  impost,  assessment,  toll,  or  municipal  fine,  or  in  which 
the  demand,  exclusive  of  interest  or  the  value  of  the  property 
in  controversy,  amounts  to  three  hundred  dollars;  also,  in  cases  of 
forcible  entry  and  detainer,  and  in  proceedings  in  insolvency,^^ 

BS  Cal.  Const.  (1870).  art.  0.   §  3. 

^^  Ex  parte  Attorn«\v-(ieneral.   1   Cal.  8.5. 

CO  In  actidns  for  dainajres  to  real  property,  when  the  question  of 
title  is  involved,  it  lias  apjiellatc  jurisdiclion.  althoiiph  tlio  damages 
claimed  are  less  than  .S.".nO.    Doherty  v.  Thayer,  31  Cal.  140. 

'■'1  Conant  v.  f'onant.  Id  Cal.  2-lit;  TO  Am.  Dec.  717;  approved  in 
Terry  v.  Ames,  2(5  Cal.  :}Sf;;  rco])l(>  v.  KoslMM-on.di,  29  id.  418; 
Cnin-twritrht  v.  Bear  Kivcr  A:  Anl)nrn  Water  <fc  Mininfr  Co..  .SO  id. 
.'"(Tit;  aflirmed  in  Knowlcs  v.  Yates,  -SI  id.  84;  Dnniiiliy  v.  Cuindnn, 
\?>  id.  ?M.  So  in  caRcs  nf  divorce.  Conant  v.  Conant,  10  id.  240; 
70  Am.  Dfc.  717.  So  in  insfs  of  (-ontcsted  eloctions  on  ap))eal 
from  Connty  Courts.  Middletftn  v.  Ckndd,  .5  Cal.  100;  Knowles  v. 
Yat«'S.  .'51  id.  S2;  altirnn'<i  in  Hay  v.  .lones,  id.  203.  On  (piestions 
of  fraud  mado  in  iietilion  of  iiisolvont  d('l>(or.  Fislc  v.  Ills  Creditors, 
12  Cal.  2«i1;  approved  in  Peojjle  v.  Shepard.  2.S  id.  115;  People  v. 
Ttoslioronirli,  20  id.  418.  .\s  to  appellate  jurisdiction  generally,  see 
Houghton's  Appeal,  42  id.  ?.Tk 

^'OL.  1—3 


§36  GKXEKAL    PUINCIPLES.  18 

and  in  all  such  probate  matters  as  may  be  provided  by  law;*"'^ 
also,  in  all  criminal  eases  prosecuted  by  indictment  or  inl'orma- 
lion  in  a  court  of  record  on  (| nest  ions  of  law  alone."'''  The  court 
also  has  power  to  issue  writs  of  iiiandamiis,  certiorari,  prohibi- 
tion, and  Jiabcas  corl>us,  and  all  other  writs  necessary  or  ])roper 
to  the  complete  exercise  of  its  ap])ellate  jurisdiction.''^  I'lach 
of  the  justices  has  power  to  issue  writs  of  Jiabcas  corpus,  upon 
petition  by  or  on  behalf  of  any  person  held  in  actual  custody, 
and  may  make  such  writs  returnable  before  himself,  or  the 
Supreme  Court,  or  before  any  Superior  Conrt  in  the  state,  or 
before  any  judge  thereof.*'^ 

C2  The  appellate  jurisdiction  of  tlio  Supreme  Court  in  probate 
matters  is  regulated  by  section  9G3,  subdivision  3  of  the  Code  of 
Civil  Pi'ocedui-e.    See  In  re  Ilatliaway,  111  Cal.  270. 

63  The  Supreme  Court  may  exercise  its  appellate  jurisdiction  in 
criminal  cases  confined  to  felony.  People  v.  Ai^plegate,  5  Cal.  295; 
affirmed  in  People  v.  Vick,  7  id.  165;  People  v.  Johnson,  30  id.  101; 
People  V.  Shear,  7  id.  139;  People  v.  Fowler,  9  id.  86;  People  v. 
Apgar,  35  id.  389;  see,  also,  People  v.  Cornell,  16  id.  187;  People 
V.  War,  20  id.  117;  People  v.  Burney,  29  id.  459;  People  v.  Jones, 
31  id.  576;  Wheeler  v.  Donnell,  110  id.  6.55.  The  question  whetiu'r 
the  Supreme  Court  has  jurisdiction  to  review  criminal  cases  upon 
quest ious  of  fact,  raised,  but  not  decided.  People  v.  Dodge,  80 
Cal.  455;  89  Am.  Dec.  129.  From  a  judgment  convicting  a  person 
of  contempt,  and  imposing  on  him  a  line  exceeding  ^300,  no 
appeal  lies.  Although  contempt  pr6ceedings  are  criminal  in  their 
nature,  they  are  not  prosecuted  by  indictment  or  information. 
Tyler  v.  Connolly,  65  Cal.  28.  The'  Supreme  Court  has  appellate 
jurisdiction  to  revise,  modify,  or  reverse  judgments  of  the  Superior 
Court  rendered  Avithout  jurisdiction.   Smith  v.  ^^"estfield,  88  Cal.  374. 

64  The  Supreme  Court  lias  original  jurisdiction  to  Issue  writs  of 
habeas  corpus,  mandamus,  certiorari,  and  prohibition,  and  may  exercise 
its  ajipellate  jurisdiction  by  means  of  such  writs.  Ex  parte  At- 
torney-General, 1  Cal.  87;  Warner  v.  Hall,  id.  90;  Warner  v.  Kelly, 
id.  91;  Tyler  v.  Houghton,  25  id.  28;  Miller  v.  Board  of  Super- 
visors Sac  Co.,  id.  93;  People  v.  Loucks,  28  id.  71;  Courtwright 
V.  Bear  Riv.  &  Aub.  Wat.  &  Min.  Co.,  30  id.  585;  Perry  v.  Ames, 
26  Id.  383;  Caulfield  v.  Hudson,  3  id.  389;  Reed  v.  McCormick,  4 
id.  342;  Parsons  v.  ''Riolumne,  5  id.  43;  63  Am.  Dec.  76;  Townsend 
V.  Brooks,  5  Cal.  .52;  Zander  v.  Coe,  id.  2.30;  People  v.  Applegate, 
id.  295;  People  v.  Fowler,  0  id.  86;  People  v.  Turner,  1  id.  143;  52 
Am.  Dec.  295;  White  v.  IJghthall,  1  Cal.  347;  Purcell  v.  INIcKune, 
14  id.  230;  Flagley  v.  Hubbard,  22  id.  .38:  Milikin  v.  Huber.  21  id. 
160:  Lewis  v.  Barclay,  35  id.  913;  approving  People  v.  Weston.  28 
Id.  639;  Adams  v.  Town,  3  id.  2A1\  Cowell  v.  Buckelew,  14  id.  642; 
Hyatt  V.  Allen,  54  id.  3.53. 

C5Cal.  Const.  (1879),  art.  6,  §  4. 


19  JURISDICTION.  §§  37,  38 

§  37.  The  same  —  legislative  power  over.  Tlie  legislature  can 
not  take  away  or  impair  the  appellate  Jurisdiction  of  the 
Supreme  Court,  but  may  prescribe  the  mode  in  which  appeals 
may  be  taken.^® 

§  38.  The  same  —  amount  in  controversy.  The  appellate 
jurisdiction  of  the  Supreme  Court  extends  to  all  actions  in 
which  the  demand,  exclusive  of  interest,  or  the  value  of  the 
property  in  controversy  amounts  to  three  hundred  dollars.*^^ 
The  amount  sued  for,  and  the  value  of  the  property  in  contro- 
versy, is  thus  the  test  of  jurisdiction.*'^  The  words  "  property 
in  controversy,"  as  thus  used,  mean  the  subject  of  litigation, 
the  matter  for  which  suit  is  brought.*'^  If  an  appeal  is  taken 
by  the  plaintiff  from  a  judgment  in  his  favor,  then  the  amount 
in  dispute  is  the  difference  between  the  amount  of  the  judg- 
ment and  the  sum  claimed  by  the  complaint.  But  if  the 
judgment  is  for  the  defendant,  the  jurisdiction  of  the  Supreme 
Court  is  determined  by  the  amount  claimed  in  the  complaint.'^'' 
If  the  appeal  is  taken  by  the  defendant  from  a  judgment  in  his 
favor,  where  he  set  up  a  counterclaim,  the  amount  in  dispute 
is  the  difference  between  the  amount  of  the  judgment,  exclu- 
sive of  costs,  and  the  sum  claimed  in  his  counterclaim.  The 
interest  due  forms  no  part  of  the  amount  in  dispute;  so,  also, 
costs  constitute  no  part  thereof.'^^  "Where  plaintiff  had  judg- 
ment against  defendant  for  six  hundred  dollars,  and  defendant 
had  judgment  in  the  same  court,  in  another  action,  for  one 
hundred  and  ten  dollars,  a  motion  by  plaintiff  that  defendant's 
juflgment  be  set  off  against  plaintiff's  judgment  was  denied, 
from  which  the  plaintiff  appealed,  but  the  Supreme  Cotirt  held 
that  it  had  no  jurisdiction,  the  judgment  sought  to  be  set  off 
being  less  than  three  hundred  dollars."^^ 

f^"  riaicht  V.   Ony.  R  Cal.  .300. 

CTCal.  fonst.  (1879).  art.  6,  §  4;  seo  Estate  of  Oelanoy,  110 
Cal.  .'".(«;  Haker  v.  Italhvay  Co.,  Id.  4,5.j. 

'«Maxfif'I(l   v.  .Tidinson,  .''►()  f';il.  rA'r.  Solomon  v.  Roese,  ?>\   U\.  34. 

'i»  ruiiiipliy  V.  r;iilii(lon,  13  Cal.  28;  afflniied  in  Moeker  v.  Harris. 
2."?  1(1.  2S(\:  Kolton  v.  Lnndcrs.  27  i<l.  107;  Clllespie  v.  Benson.  IS 
1(1.  4<n):  Zal.riKkJp  v.  Torrry,  20  Id.  174;  Votnn  v.  Rooso,  20  Id.  91. 

TOSkillnian  v.  LafJiiiiaii.  2.'5  Cal.  198;  8.'}  Am.  Dec.  ^r,;  Ilenlgan  v. 
Erwin.  110  f'al.  .".7. 

71  TniTiiitliy  V.  fJnindon,  I.T  Cal.  28;  Votan  v.  Roose,  20  id.  SO; 
Znl.riskle  v.  Torrcy,  Id.  17.''.;  "Maxfleld  v.  .Tohnson.  30  id.  .^-1;". 

72  Prandall  v.  lUen,  I.'".  f';il.  407.  .AppHL-ite  .Inrisdiotion  of  Su- 
preme Court  as  to  amount  involved,  consult  SelUck  r.  De  Carlow, 


§§  38a,  o8b  general  principles.  ^0 

§  38n.  Jurisdiction  of  Supreme  Court  of  Colorado.    Under  the 

pro\it;iond  oi'  the  Constilution  ol  Colorado,  the  principal 
jurisdiction  of  the  Supreme  Court  is  first  appellate,  and,  second, 
superintending.  But  there  is  also  conferred  upon  it  a  limited 
original  jurisdiction^^  In  causes  pnblici  juris  the  Supreme 
Court  may,  however,  decline  to  assume  original  jurisdiction 
when  satishod  that  the  issues  can  be  i'ldly  determined  and  the 
rights  of  all  parties  preserved  and  enforced  in  the  lower  courts.""* 
The  Supreme  Court  has  jurisdiction  to  entertain  an  appeal 
from  the  Court  of  Appeals  where  the  judgment  of  the  trial 
court  exceeds  twenty-five  hundred  dollars,  irrespective  of 
whether  the  judgment  of  the  Court  of  Appeals  was  one  of 
affirmance  or  reversal,  and  the  same  is  true  as  to  writs  of  er- 
ror.'''^ But  the  Supreme  Court  has  no  jurisdiction  upon  appeal 
or  writ  of  error  to  review  the  judgment  of  a  District  Court 
where  the  action  does  not  relate  to  a  franchise  or  freehold, 
where  no  constitutional  question  is  involved  and  where  the 
judgment  of  the  court  below  was  one  of  nonsuit. '^^ 

§  38b.  Original  jurisdiction  of  Supreme  Court  of  North  Dakota. 

In  the  exercise  of  its  original  jurisdiction,  under  section  87 
of  the  State  Constitution,  the  Supreme  Court  of  North  Dakota, 
exercising  its  discretion,  will  issue  the  writ  of  habeas  corpus, 
mandamus,  quo  zvarranto,  certiorari  and  injunction  only  when 
applied  for  as  prerogative  writs,  and  where  the  question  pre- 
sented is  publici  juris,  and  one  affecting  the  sovereignty  of  the 
state,  its  franchises  or  prerogatives,  or  the  liberties  of  the 
people.  To  invoke  the  original  jurisdiction  of  the  court, 
the  interest  of  the  state  must  be  primary  and  proximate,  and  not 
secondary  and  remote.''"^ 

95  id.  644;  People  v.  Perry,  79  id.  lO.j;  Bienenfeld  v.  Milling  Co., 
82  id.  425;  Lord  v.  Goldberg,  81  id.  .59(>;  Sons  of  America  v.  Denver, 
15  Col.  592;  Herrin  v.  Pugh,  9  Wash.  St.  637;  Lotz  v.  Mason 
County,  6  id.  IGQ;  Freeburger  v.  Caldwell,  5  id.  7G9. 

73  Wheeler  v.  Northern  Colorado  Irrigation  Co.,  9  Col.  248. 

74  People  V.  Rogers,  12  Col.  278;  In  re  Rogers,  14  id.  18;  People 
V.  Clerk,  etc.,  22  id.  280. 

75  Colorado  Springs  Live  Stock  Co.  v.  Godding,  20  Col.  71. 
"CTimerman  v.  South  Denver  Pvral  Estate  Co.,  20  Col.  147;  and 

see  Wyman  v.  Felker,  18  id.  382;  Trimble  v.  People,  19  id. 
187.  Appeals  to  the  Supreme  Court  do  not  exist  in  the  absence 
of  statute.       People  v.   Richmond,   16  Col.  274. 

"  North  Dakota  v.  Nelson  County.  1  N.  Dak.  88;  see,  also.  At- 
torney-General T.  City  of  Ean  Claire,  37  Wis.  400;  Wheeler  v. 
Irrigation  Co.,  9  Col,  248. 


21  JURISDICTION".  §§  38c-38f 

§  38c.  Appellate  jurisdiction  of  Oregon  Supreme  Court.  The 
Supreme  Court  of  Oregon  can  reverse,  affirm  or  modify  judg- 
ments appealed  to  it  from  Circuit  Courts,  and  direct  a  new 
trial  when  proper  to  do  so.  But  it  has  no  right  to  pass  upon 
questions  in  advance  of  those  courts,  and  must  confine  its  action 
to  determinations  already  had.'^* 

§  38d.  Original  jurisdiction  of  Utah  Supreme  Court  —  prohi- 
bition. The  Supreme  Court  of  Utali  territory  has  original 
jurisdiction  to  issue  writs  of  prohibition  under  section  20,  Code 
of  Civil  Procedure.  And  a  writ  of  prohibition  is  properly  is- 
sued from  the  Supreme  Court  to  arrest  the  proceeding  of  an 
inferior  tribunal  when  such  tribunal  is  acting  without,  or  in 
excess  of  its  jurisdiction,  and  there  is  no  plain,  speedy  and 
adequate  remedy  in  the  ordinary  course  of  law.'^'* 

§  38e.  Appellate  jurisdiction,  Washington  Supreme  Court  — 
amount  involved.  No  appeal  lies  to  the  Supreme  Court  of 
Washington,  in  any  civil  action  at  law,  where  the  judgment  is 
for  a  less  sum  than  two  hundred  dollars.^^  The  allegation  of 
the  pleader  that  the  value  of  the  property  in  controversy  is  a 
sum  in  excess  of  two  hundred  dollars  is  not  sufficient  to  give 
the  Supreme  Court  jurisdiction  on  appeal,  but  before  the  ap- 
pellate court  will  assume  jurisdiction  there  must  be  a  finding 
as  to  tlie  value  by  the  lower  court.^^  If  the  object  of  a  garnish- 
ment proceeding  is  to  ascertain  the  title  and  right  of  possession 
of  personal  property,  instead  of  the  recovery  of  money,  the 
action  is  within  the  appellate  jurisdiction  of  the  Supreme  Court, 
although  the  principal  debt  may  be  less  than  two  hundred 
dollars.^^ 

§  38f.  Equitable  jurisdiction  —  general  principles.  When  a 
rigbt  is  of  sucli  a  cbaracter  that  a  court  of  law  is  authorized  to 
take  cognizance  of  it,  and  to  aflford  a  plain,  adequate  and  com- 
])lote  remedy,  tlie  general  principle  is  that  the  plaintifT  must 
rnforcc  his  right  at  law.     l>ut  when  a  couri  of  eipiity  originally 

"Tisk  V.  Ilenarlc.  It  Ore;;.  2U;  sec  .Milclicll  v.  Powers,  Ifi  id.  487; 
17  Ifl.  402;  hi  re  Nortli   Vac,  oU:,  Board  v.  Ah  Wan,  IS  id.  344. 

7!)  Pcoplo  V.  Siilcr.s,  4  rinli.  :?«->:  see  §  r,442,  f^ost. 

*-'»Toin  the  Hook  v.  SaywaHl.  r>  Wasli.  St.  383;  and  soo  Free- 
ImrtT'T  V.  Caldwell,  id.  Tf'.n;  .Tar-obs  v.   Pnyalliiii.   10  id.  ,384. 

^i  irfniii   r.    Puirli.  Ti   Wasli.   St.  r,?,7. 

«2fa,iiplK'll  V.  Siiiipkins,  10  Wasli.  St.  100;  and  see  Eldson  v. 
Woolcrv.  10  id.  22.'). 


^<  ;][)  GENERAL  PRINt  TPLES.  22 

o 

luul  jurisdiction  in  any  classes  of  eases  for  which  the  proceeding 
at  common  hnv  did  not  I  hen  aU'ord  an  ade(j[uate  remedy,  such 
jurisdiction  will  not  bo  lost  by  reason  of  subsequent  legislation 
conferring  on  courts  of  law  authority  to  decide  such  cases, 
unless  there  are  negative  words  excluding  tlie  jurisdiction  of 
cquity.*^^  An  established  principle  is  that  when  a  court  of 
equity  acquires  jurisdiction  of  a  cause  for  one  purpose,  it  main- 
tains it  for  all  purposes,  and  administers  com})lete  relief.  It 
will  neither  invoke  the  aid  of  other  courts,  nor  permit  them 
to  interfere  w'ith  its  process.^^  The  rule  was  adopted  for  the 
same  object  for  which  other  equitable  principles  were  estab- 
lished, namely,  to  prevent  a  failure  of  justice.*^^  But  equity 
Avill  not  interfere  where  there  is  a  plain,  speedy  and  adequate 
remedy  at  law.  And  if  the  courts  of  law  are  open  to  litigants 
to  pursue  the  ordinary  remedies  at  law  for  the  collection  of 
debts,  a  court  of  equity  will  not  interfere  to  prevent  or  obstruct 
the  more  diligent  in  the  enforcement  of  his  legal  rights.^® 

§  39.  Jurisdiction  of  Superior  Court  of  California.  The  court 
of  general  original  jurisdiction  in  California  is  called  the  Su- 
perior Court.  The  Constitution  of  1879  abolished  the  then 
existing  District,  County  and  Probate  Courts,  and  established 
such  court  in  their  place,  combining  in  it  the  powers  and  juris- 
diction which  had  been  previously  exercised  by  them.  The 
jurisdiction  of  the  Superior  Court  is  both  original  and  appellate. 
It  has  original  jurisdiction  in  all  cases  in  equity,  and  in  all 
cases  at  law  which  involve  the  title  or  possession  of  real  prop- 
erty, or  the  legality  of  any  tax,  impost,  assessment,  toll,  or 
municipal  fine,  and  in  all  cases  in  which  the  demand,  exclu- 
sive of  interest,  or  the  value  of  the  property  in  controversy, 
amounts  to  three  hundred  dollars,  and  in  all  criminal  cases 
amounting  to  felony,  and  cases  of  misdemeanor  not  otherwise 
provided  for;  of  actions  of  forcible  entry  and  detainer,  of  pro- 
ceedings in  insolvency,  of  actions  to  prevent  or  abate  a  nui- 
sance; of  all  matters  of  probate;  of  divorce  and  for  annulment 
of  marriage,  and  of  all  such  special  cases  and  proceedings  afj  are 
not  otherwise  provided  for.     It  also  has  power  to  naturalize 

S3  Phipps  V.  Kelly,  12  Oreg.  213. 

84  Haynes  v.  Wliitsett,  18  Col.  454. 

85  Helmick  v.  Davidson,  18  Col.  4!')G. 

8«Ofrden  Paint,  etc.,  Co.  v.  Child,  10  Utah,  475;  see,  also.  Miller 
v.  Tohin,  16  Oreg.  554. 


33  JURISDICTIO]^".  §  39 

aliens,  aud  to  issue  papers  therefor.  Such  courts,  and  their 
judges,  have  power  to  issue  writs  of  niaiuiainiis,  certiorari,  pro- 
hibition, quo  zcarraiito,  and  Jiabcas  corpus,  on  petition  by  or  on 
belialf  of  any  person  in  actual  custody  in  their  respective 
counties.  Injunctions  and  writs  of  prohibition  may  be  issued 
and  served  on  legal  holidays  and  nonjudicial  days.  They  have 
appellate  jurisdiction  in  such  cases  arising  in  justices'  and  other 
inferior  courts  in  their  respective  counties  as  may  be  prescribed 
by  law.  They  are  always  open  for  the  transaction  of  business, 
and  their  process  extends  to  every  portion  of  the  state.  There 
is  a  Superior  Court  in  each  county  of  the  state.  The  number 
of  judges  belonging  to  the  respective  courts  varies  from  twelve 
in  the  city  and  county  of  San  Francisco,  to  one,  which  is  the 
number  in  most  of  the  counties.^'^  A  judge  of  any  Superior 
Court  may  hold  a  Superior  Court  in  any  county,  at  the  request 
of  a  judge  of  the  Superior  Court  thereof,  and  upon  the  request 
of  the  governor  it  is  his  duty  so  to  do.^^  And  a  Superior  Court 
judge  of  a  particular  county,  who  holds  court  in  another  county, 
must  be  presumed,  in  the  absence  of  evidence  to  the  contrary, 
to  be  acting  upon  the  request  of  the  governor,  or  of  the  judge 
of  the  court  of  the  latter  county. ''*'*  The  jurisdiction  of  causes 
is  vested  by  the  Constitution  in  the  Superior  Court  and 
lutt  in  any  particular  judge  or  department  thereof,  although 
it  provides  that  there  may  be  as  many  sessions  of  the  court  at 
tlie  same  time  as  there  are  judges.  AYhether  sitting  separately 
or  together,  the  judges  hold  but  one  and  the  same  court,  and 
tlie  division  into  departments  is  purely  imaginary,  and  for  the 
convenience  of  business  and  of  designation;  and  transferring 

P"  The  nunil)er  of  judges  is  from  liino  to  tiiiio  changed  by  legis- 
lative i»rovisioii.  See  Act  of  Marc-li  10.  1S91;  .\(t  of  February  13, 
1803:  Act  of  .Mar<-li  r>,  ISO.l;  Act  of  March  S,  ISO-'.;  Act  of  March  12, 
IHUr,;  and  Act  of  March  20,  180"*.  Tlio  fci-ni  of  office  of  superior 
JMd;,'es  coiiiiuences  on  tlie  first  Mondny  after  the  1st  day  of 
Jimujiry  next  following  their  election.  Merced  I^anl<  v.  Rosenthal, 
fiD  f'al.  .''.n;  reoi)h',  etc.  v.  .Marldiant.  104  id.  2.'i2.  Altliough  the 
Superior  fourt  derives  its  antlioriiy  rioiii  the  Constitution  it  is 
controlled  as  to  tlie  mode  of  its  adii  ii  l)y  tlie  Code,  and  the  legis- 
lature  may  regulate  Die  mode  in  wliidi  ilie  court  shall  exercise  its 
Jurisdiction,  though  it  can  not  circums(  ril»e  its  powers.  Rurrisv. 
Kennedy.  108  Cnl.  3.".1. 

f<>>ral.  fcmst.  (1870),  art.  C,  S§  ."VS;  Eurolca  Lake,  etc.,  Canal  Co. 
V.  Sujierior  Ct.,  (\r,  Cal.  311. 

"" /n  re  Newman,  7.">  Cal.  213;  People  v.  Ali  Lee  Doon,  97  id. 
171,  177. 


§  4U  GK^'KlJAl,    I'KlNC'll'LKS.  24 

a  cause  from  one  departmeut  to  anolher  does  not  effect  a  change 
or  transfer  of  tlie  jurisdiction,  which  remains  at  all  times  iu 
the  court  as  a  single  cut  it  y.^*^ 

§  40.  The  same  —  jurisdiction  in  general.  The  Superior  Court, 
like  the  District  Court,  wliicli  it  superseded,  is  one  of 
general  original  jurisdiction;  its  process  is  coextensive  with 
the  state;"^  and  the  regularity  of  its  proceedings  is  presumed."- 
It  is  not  necessary,  therefore,  in  pleading  a  judgment  of  the 
Superior  Court,  to  aver  the  facts  conferring  jurisdiction.  They 
are  presumed  by  law.*-*^  But,  although  the  exercise  of  jurisdic- 
tion is  presumed  rightful,  yet  if  it  appears  from  the  records 
of  the  court  in  any  matter  that  it  had  not  acquired  jurisdiction, 
either  of  the  subject-matter  or  of  the  parties,  this  presumption 
is  destroyed. '^^  They  have  no  appellate  jurisdiction  except  such 
as  is  conferred  upon  them  by  the  Constitiition.^^  Nor  can 
the  Superior  Court  exercise  original  jurisdiction  in  those  mat- 
ters in  which  its  jurisdiction  is  only  appellate.  Thus,  the 
jurisdiction  of  the  Superior  (*ourt  in  causes  transferred  to  it 
under  section  838  of  the  Code  of  Civil  Procedure  is  original 
and  not  appellate,  and  if  it  would  have  had  no  jurisdiction 
if  the  action  had  been  commenced  therein,  it  can  have  none 
by  the  filing  of  pleadings  certified  by  a  justice  of  the  peace.'"' 

90  White  V.  Superior  Ct.,  110  Cal.  GO;  Brown  v.  Campbell,  id.  664. 

»i  Reyes  v.  Sanford.  f)  Cal.  117. 

92  People  v.  Robinson.  17  Cal.  363;  approved  in  People  v.  Rol)in- 
son,  27  id.  67;  People  v.  Judge,  Tenth  .Tud.  Dist.,  9  id.  10.  As  to 
the  power  of  supeiwision  of  District  Courts  over  inferior  tribunals, 
see  Miliken  v.  Huber,  21  Cal.  166. 

»3Campe  v.  Lassen,  67  Cal.  139. 

94  Arroyo  Ditch  &  Water  Co.  v.  Superior  Ct.,  92  Cal.  47;  27  Am. 
St.  Rep.  91.  Presumption  of  jurisdiction.  See  Estate  of  Eiehhoff, 
100  Cal.  600. 

95  People  V.  Peralta,  3  Cal.  379;  Canfield  v.  Hudson,  id.  389 
Hernandez  v.  Simon,  id.  464;  Gray  v.  Schupp,  4  id.  185;  Reed  v 
McCormick.  id.  342;  affirmed  in  Parsons  v.  Tuol.  W.  Co.,  r>  id.  43 
63  Am.  Dec.  76;  Keller  v.  De  Franklin,  .5  Cal.  432;  Becket  v 
Selover,  7  id.  240;  and  People  v.  FoMler,  9  id.  86;  Townsend  v 
Brooks.  5  id.  52;  Zander  v.  Coe,  id.  230;  People  v.  Applej?ate,  id 
295;  affirmed  in  People  v.  Vlck,  7  id.  166;  People  v.  .Tohnson,  30  id 
101;  People  v.  Shear,  7  id.  140;  People  v.  Apgar,  35  id.  389. 

96  Arroyo  Ditch  &  Water  Co.  v.  Superior  Ct.,  92  Cal.  47;  27  Am 
St.  Rep.  91. 


25  JURISDICTION.  §§  41,  4:2 

When  sitting  in  an  equity  action,  as  for  example  an  action  to 
abate  a  nuisance,  the  court  and  judge  are  possessed  of  all  the 
powers  of  a  Court  of  Chancery.®'  As  at  present  organized,  the 
Superior  Courts  have  no  stated  terms.  Formerly,  the  District 
Courts  lost  all  power  over  a  cause,  in  which  judgment  had  been 
rendered,  upon  the  adjournment  of  the  term,  and  coukl  not 
disturb  its  judgments  except  in  cases  provided  by  statute.^^ 
The  Constitution  of  1879  aboblished  the  system  of  terms  and 
fiual  adjournments  under  which  judicial  business  was  transacted 
by  the  former  courts.  And  there  is  now  no  division  of  time 
into  certain  periods  of  the  year  known  as  terms  of  court  at 
which  a  court  may  sit  to  hear  and  determine  causes.^® 

§  41.  The  same  —  amount  in  controversy.  In  actions  for 
the  recovery  of  money,  the  Superior  Court  has  jurisdiction, 
if  the  sum  sued  for  amounts  to  three  hundred  dollars,  exclu- 
sive of  interest,  regardless  of  the  sum  for  which  judgment  may 
be  obtained.^*^*^  "Where  the  principal  sum  sued  for  is  less  than 
two  hundred  dollars  (now  three  hundred  dollars)  the  Superior 
Court  has  no  jurisdiction.^°^ 

§  42.  The  same  —  determining  character  of  action.  The  ad 
damnum  clause  of  the  complaint  is  the  test  of  jurisdiction,  and 
where  the  demand  according  to  that  clause"  exceeds  three  hun- 
dred dollars,  exclusive  of  interest,  the  Superior  Court  has  juris- 
diction of  the  action. ^^^  It  has  no  jurisdiction  of  an  action 
against  a  tax  assessor  to  recover  damages  alleged  to  have  been 
caused  by  reason  of  a  wrongful  and  fraudulent  assessment  made 
by  him.  if  the  amount  claimed  is  less  than  three  hundred 
dollars.'"''     Nor  has  it  jurisdiction  of  an  action  to  enforce  the 

OTSanfonl  v.  Tload,  r^  Cal.  207;  Poople  v.  Davidson.  ."^O  id.  3S0; 
api)rovpd  In  f'onrtwrijrlit  v.  Bear  lUv.  &-  Anb.  Water  &  Min.  Co., 
Id.  n.S.'".;  Maldsfndt  v.  Klanc.  ^A  id.  ".77;  Conrtwricht  v.  Bear  Rlv. 
&  Ant..  WatfT  &  Min.  Co.,  ?,0  id.  .'".sr>;  Wrijrlit  v.  Miller.  1  Saudf. 
Ph.  120;  Hripal  v.  Wood,  1  .Toiins.  CIi.  401. 

n"«Snydnni  v.  Pitflior.  4  Pal.  2.S0;  allirnicd  in  Can^entier  v.  Hart, 
5  id.  407;  Shaw  v.  MrOrofror,  S  id.  ,'".21;  Do  Castro  v.  Richardson, 
2.".  Id.  r,2:  Casement  v.  UinpKold.  28  id.  338;  see.  also,  Whlpley  v. 
Dewev,  17  Id.  314. 

^  In  re  r;nnnon,  00  Cnl.  .Ml. 

i"«  Solr.nif.n   V.  TtPPRc.  34   Cal.  28. 

Ill  Arnnld  v.  Van   Brnnf.  4  Cal.  89. 

i"2Ballf'.v  V.  Sloan,  (r,  fnl.  .387;  Creenbaum  v.  Martino?:.  80  Id.  459. 

108  Perkins  v.  Ralls.  71  Cal.  87. 


§§43,44  GKNEUAL    PUlMCll'LKS.  2Q 

liability  of  the  stockhokloiri  oi"  a  corporation  as  to  those  against 
whom  a  judgment  in  less  than  three  hundred  dollars  is  de- 
manded, although  the  aggregate  indebtedness  of  the  corpora- 
tion sued  upon  exceeds  that  sum.^"'*  But  if  the  prayer  of  the 
ci)mplaint  asks  for  the  foreclosure  of  a  lien,  order  of  sale,  etc., 
it  is  a  suit  in  equity,  in  which  case  the  Superior  Court  has 
jurisdiction,  regardless  of  the  amount  claimed. ^^"^ 

§  43.  The  same  —  divorce.  In  a  suit  for  a  divorce,  and  parti- 
tion of  the  property  acquired  during  coverture,  the  jurisdiction 
of  the  Superior  Court  is  not  limited  as  to  the  amount.^^* 
Superior  Courts  have  jurisdiction  to  decree  relief  in  alimony 
to  the  wife,  in  a  separate  action,  unconnected  with  a  suit  for 
divorce. ^*^^  Or,  to  enforce  an  agreement  for  separation  and 
alimony  in  connection.^"*^  And,  in  general,  whenever  the  wife 
is  entitled  to  live  separate  from  her  husband,  by  reason  of 
breaches  of  matrimonial  duty  committed  by  him,  a  concurring 
adjudication  must  be  pronounced  that  he  support  her  while  so 
living.^^^ 

§  44.  The  same  —  forcible  entry  and  detainer.  In  Nevada, 
District  Courts  have  jurisdiction  in  actions  of  forcible  entry 
and  detainer.^^°  Previous  to  the  present  California  Constitu- 
tion, jurisdiction  in  such  actions  was  conferred  upon  the  County 
Courts.  The  present  Constitution  vests  it  in  the  Superior 
Courts,  subject  to  the  proviso  that  Justices'  Courts  shall  have 

104  Hyman  v.  Coleman,  82  Cal.  6.')0;  IG  Am.  St.  Rep.  178. 

105  Maxfield  v.  Johnson,  80  Cal.  54,5;  Solomon  v.  Reese,  34  id.  28 
People  V.  Mler,  24  id.  (51;  affirmed  in  Bell  v.  Crippen,  28  id.  328 
Courtwright  v.  Bear  Riv.  &  Aub.  Water  &  Min.  Co.,  30  id.  581 
:MaliIstadt  v.  Blanc,  34  id.  .577. 

100  Denprez  v.  Denproz,  5  Cal.  .SS7. 

lOTGalland  v.  Oalland.  3S  Cal.  205;  citing  Purcell  v.  Purcell,  4 
Hen.  &  IVIunf.  .".07;  Almond  v.  Almond,  4  Rand.  002;  Losan  v. 
Lofran,  2  B.  Mon.  142;  leather  v.  Pratlier,  4  Desaus.  33;  Rhame  v. 
Rhamo,  1  MeCord  Cli.  197;  Glover  v.  Glovei',  10  Ala.  440,  440. 

losGalland  v.   Galland,  supra. 

100  2  Story's  Eq.  ,Tur.,  §§  1422,  1424;  Fischcli  v.  Fischli,  1  Blackf. 
.300,  305;  Chapman  v.  Cliapman,  13  Ind.  397;  Shannon  v.  Shannon, 
2  Gray,  2R5;  Slieafe  v.  Sheafe,  4  Fost.  .5f)4;  Parsons  v.  Parsons,  9 
X.  H.  .309;  Lawson  v.  Shot^vell,  27  Miss.  030;. Doyle  v.  Doyle,  26 
Mo.  .545;  Yule  v.  Yule,  2  Stookt.  13S,  143;  Corey  v.  Corey,  3  id.  400; 
McGee  v.  McGee,  10  Ga.  477;  Peltier  v.  Peltier,  Harr.  (Mich.)  Ch. 
19. 

iiOHoopes  V.  Meyer,  1  Xev.  433. 


27  JURISDICTION.  §§  45,  46 

concurrent  jurisdiction  in  such  actions,  where  the  rental  value 
of  the  property  in  dispute  does  not  exceed  twenty-tive  dollars 
per  month,  and  where  the  whole  amount  of  damages  claimed 
does  exceed  two  hundred  dollars.^^^ 

§  45.  The  same  —  fugitives  from  justice.  The  Superior  Courts, 
being  courts  of  general  original  jurisdiction,  exercising 
the  usual  powers  of  common-law  courts,  are  fully  competent  to 
hear  and  determine  all  matters,  and  to  issue  all  necessary  writs 
for  the  arrest  and  transfer  of  fugitive  criminals  to  the  author- 
ized agent  of  the  state  from  which  they  fled,  without  any  special 
legislation;"^  or  to  inquire  into  the  legality  of  their  detention 
under  a  requisition  from  a  governor  of  another  state.^^^ 

§  46.  The  same  —  abatement  of  nuisances.  Unde  the  Consti- 
tution, the  Superior  Courts  have  jurisdiction  in  actions  to 
abate  a  nuisance.  Such  jurisdiction,  being  a  constitutional 
grant,  can  not  be  taken  away  by  the  action  of  the  legislature 
in  attempting  to  confer  exclusive  or  concurrent  jurisdiction 
over  such  cases  on  other  courts.^^^  Actions  to  abate  a  nuisance 
would  ordinarily  be  included  within  the  equitable  jurisdiction 
of  a  court  clothed  with  such  power.  The  California  Constitu- 
tion, besides  granting  to  the  Superior  Court  general  legal  and 
equitable  jurisdiction,  has  specially  empowered  it  with  juris- 
diction of  actions  for  the  abatement  of  nuisances,  and  for  the 
recovery  of  damages  caused  thereby.  In  interpreting  the  con- 
stitutional provisions  granting  such  jurisdiction,  and  in  order 
to  give  effect  to  each,  it  has  been  held  in  a  very  recent  case, 
that  in  hearing  and  determining  such  actions  the  Superior 
Court  sits  as  a  special  and  not  as  an  ordinary  equitable  tribunal; 
that  the  verdict  of  the  jury  on  the  general  question  of  damages, 
in  favor  of  the  plaintiff,  necessarily  is  a  finding  upon  the  right 
of  the  plnintiff    to  an   abatement  of  the  nuisance,   and   that 

"1  Cal.  Const.  n.STII).  ;irt.  <»,  g§  .^.,  11.  in  Oregon.  .Tustifos' 
Courts  havo  Jurisdiction  In  actions  of  foicihlo  entry  and  detainer, 
to  thp  exclusion  of  the  Circuit  Courts.  'J'lionipson  v.  Wolf.  G  Ore??. 
SOS;  and  see  Roltlls  v.  Flint,  l.->  id.  ^^^H. 

"2/„  re  lUimalne.  23  Cal.  r>sr>;  lof.  Mass.  22.^.. 

'"/•.r  parte  Ilolilt.  CA  Cal.  4.'{1 ;  allinne<l  in  Kobb  v.  Connolly,  111 
T'.  S.  f!24:  f.vpiTulinR  Rx  parte  Uol>]),  1  West  Coast  Hop.  4.'?0. 

ii*Flt/.crcrnld  v.  T'rton,  4  Cal.  2:!r>;  Courtwri^ht  v.  Bear  River  & 
Aub.  Water  &    Min.   Co.,  HO  id.   .'-.t;}. 


§§  47,  48  GEXERAL   nUNCIPLES.  28 

jiulgincnt  abating  t^iuh   miit^ance   may   be  entered   iipou  such 
verdict  without  any  other  Uudiug  upon  the  part  of  tlie  court."^ 

§  47.  The  same  —  pai-tition.  The  Superior  Courts  have  juris- 
diction ol'  actions  to  recover  one-half  of  the  vahie  of  a  partition 
fence,  ahiuiugh  the  amount  sought  to  be  recovered  is  less  than 
three  hundred  dollars  —  such  action  involving  title  to  land.^^*^ 

§  48.  The  same  —  probate.  Tlie  jurisdiction  of  the  Superior 
Court  of  California  over  the  settlement  and  distribution  of  the 
estates  of  decedents  is  twofold.  As  a  tribunal  possessing  the 
full  equity  jurisdiction  of  the  English  Court  of  Chancery,  it 
has  jurisdiction  of  an  ordinary  equitable  action  for  the  settle- 
ment of  the  estate  of  a  decedent,  notwithstanding  the  statutes 
of  such  state  have  provided  a  full  and  complete  system  for 
the  administration  of  such  estates.  x\s  the  successor,  under 
the  Constitution  of  1879,  of  the  former  Probate  Courts,  it  pos- 
sesses jurisdiction  to  administer  such  estates  in  accordance  with 
tlie  statutory  system.^^'''  The  facts  of  the  death  of  the  deceased, 
and  of  his  residence  within  the  county,  are  foundation  facts 
upon  which  all  subsequent  proceedings  of  the  Superior  Court, 
sitting  as  a  court  of  probate,  rest.^^*  Wliere  such  court  has 
jurisdiction  of  the  subject-matter,  all  intendments  are,  under 
the  statute,  in  favor  of  the  correctness  of  the  action  of  the 
court,  the  same  as  in  other  courts  of  record. ^^^  Thus,  letters 
of  administration  upon  an  estate,  granted  by  the  Probate  Court, 

115  Learned  v.  Castle.  07  Cal.  41. 

ii6Holman  v.  Taylor,  31  Cal.  338. 

11"^  In  re  Allgier,  05  Cal.  22S.  The  Superior  Court,  while  sitting 
in  probate,  is  not  a  statutoiy  tribunal,  and  does  not  derive  its  power 
from  the  act  of  the  legislature.  Burris  v.  Kennedy,  108  Cal.  831. 
There  i.s  no  Probate  Coiui;  of  the  city  and  county  of  San  Francisco, 
but  the  Superior  Court  has  jurisdiction  of  probate  matters,  and 
there  is  no  law  aiithorizing  the  d(>signation  of  any  one  department 
of  said  coui't  for  probate  .iurisdiction,  but  each  of  the  twelve 
judges  lias  jurisdiction  in  proliate  matters.  Jn  re  Pearsons,  113 
Cal.  .'')77.  In  Rosenberg  v.  Frank,  ,58  id.  387,  this  point  was 
examined  with  great  care,  and  the  effect  of  the  statutory  system 
of  probate  stated  as  given  in  the  text.  For  a  complete  examina.- 
tion  of  the  effect  of  statutoiy  systems  of  probate  on  the  equitable 
jurisdiction  of  the  courts  of  the  various  states,  see  Pomeroy's  Eq., 
§§  .•547.3.52,  1153. 

ii«naynes  v.  Meeks,  10  Cal.  110;  70  Am.  Dec.  703;  Townsend  v. 
Gordon,  19  Cal.  205;  Estate  of  Harlan,  24  id.  182:  85  Am.  Dec.  58. 

119  Lucas  V.  Todd,  28  Cal.  182;  Irwin  v.  Scriber,  18  id.  499. 


29  JURISDICTION.  §  49 

can  not  be  collaterally  attacked  by  showing  that  the  last  resi- 
dence of  the  deceased  was  not  in  that  country,  and,  therefore, 
that  the  court  had  no  jurisdiction.^^  The  Probate  Courts  had 
no  jurisdiction  to  administer  upon  the  estates  of  deceased  per- 
sons who  died  prior  to  the  adoption  of  the  first  Constitution  in 
California;  but  the  estates  of  deceased  persons  in  such  state, 
who  died  prior  to  the  passage  of  the  Probate  Act  of  1850,  and 
subsequent  to  the  adoption  of  the  common  law,  can  be  admin- 
istered on  in  accordance  with  the  provisions  of  the  Probate 
Acts  in  force.^^^  The  Superior  Court,  while  sitting  in  matters 
of  probate,  is  the  same  as  it  is  while  sitting  in  cases  in  equity, 
in  cases  at  law,  or  in  special  proceedings.  And  when  it  has 
jurisdiction  of  the  subject-matter  of  a  case  falling  within  either 
of  these  classes,  it  has  power  to  hear  and  determine,  in  the 
mode  provided  by  law,  all  questions  of  law  and  fact  the  deter- 
mination of  which  is  ancillary  to  a  proper  judgment  in  such 
case.122 

§  49.  The  same  —  taxes.  An  action  brought  before  the 
Revenue  Act  of  18G1,  to  recover  judgment  for  unpaid  taxes,  is 
not  a  case  in  equity,  but  an  action  at  law,  and  where  the  amount 

120  Irwin  v.  Scriber,  18  Cal.  499;  affirmed  in  Halleck  v.  Moss,  22 
Id.  27(5.  Where  S.  dies  out  of  the  state,  leaving  property  in  Santa 
Chira  county,  and  the  Probate  Court  thereof  tal^es  jurisdiction  of 
the  estate  and  frrants  letters  of  administration  to  K.;  the  widow 
subse(juently  files  a  petition  to  revoke  the  letters,  on  the  ground  that 
the  Probate  Court  of  San  Francisco  ought  to  have  issued  them, 
wiicreuiKm  llie  administrator  asks  the  court  to  ti-ansfer  the  cause 
to  ihat  court,  representing  that  the  widow  and  a  majority  of  the 
witnesses  reside  tliore,  and  tliat  tlio  interest  of  several  pei"Sons  in- 
terested in  the  estate  would  be  advanced  by  the  transfer,  to  which 
botli  jiarties  agreed;  the  court  made  an  order  to  transfer.  The 
Probate  Court  of  San  Francisco,  on  the  papers  being  filed  tlierein, 
refused  to  take  jurisdiction  of  the  cause,  and  ordered  the  papers 
back.  Held,  tliat  the  Probate  Court  of  Santa  Clara  coidd  not  divest 
itself  of  jtn-isdiction.  and  vest  it  in  the  Probate  Court  of  San 
Francisco;  and  tliat  mandamus  \vill  not  issue  to  comp«'l  tlie  latter 
court  to  take  jurisdiction.     Estate  of  Scott.  \^^  Cal.  21'o. 

121  T)owner  v.  Smith.  24  Cal.  114.  commented  on  in  People  v. 
Senter,  2K  id.  .'><i.">.  and  :ii»i)roved  in  Copi)inger  v.  Rice,  33  id.  423. 

i22F8talc  of  P.urton.  93  Cal.  4ri9;  also.  Pennie  v.  Roach,  94  id. 
521;  Burris  v.  Kennedy.  lOS  id.  331.  See  furtlier,  as  to  nature, 
of  probate  juiisdietlon,  In  re  Moore,  72  id.  335,  339;  McNeil  v. 
First  Congregational  Society,  nr.  Id.  105;  /;,  re  Rose.  80  id.  174; 
Farley  v.  Parker,  G  Oreg.  113;  25  Am.  Rep.  504;  Steel  v.  Ilolladay, 
20  Oreg.  77. 


g§  40a,  -iOb  OENEUA  I.    PRINCIPLES.  30 

is  k't^s  lluui  throe  huiulred  dollars,  the  District  Court  has  no 
jurisdiction.^'^  11",  however,  the  action  is  hrought  under  the 
provisions  of  the  act  of  May  i2,  181)2,  it  is  a  case  in  equity, 
and  the  District  Court  has  jurisdiction,  although  the  amount 
claimed  is  loss  than  tlireo  liundrod  dollars.^^  The  Superior 
Court  has  original  jurisdiction  in  matters  involving  the  legality 
of  a  tax,  and  over  an  action  to  recover  a  tax,  the  legality  of 
which  is  put  in  issue. ^"'^  But  this  jurisdiction  has  reference 
to  such  assessments  as  are  authorized  in  relation  to  revenue 
and  taxation,  and  such  as  may  he  made  under  the  authority 
of  a  municipal  or  other  public  corporation  to  meet  the  cost  or 
expense  of  a  public  improvement,  and  does  not  include  assess- 
ments made  under  the  provisions  of  section  331  of  the  Civil 
Code,  by  a  private  corporation  upon  its  stockholders  pursuant 
to  contract,  express  or  implied.^-*"' 

§  49a.  The  same  —  validity  of  election.  The  Superior  Court 
has  jurisdiction,  as  the  constitutional  successor  of  the  District 
Court,  to  entertain  proceedings  under  sections  312  and  315  of 
the  Civil  Code,  providing  for  an  action  to  determine  the 
validity  of  an  election  held  by  any  corporate  body,  notwith- 
standing the  mention  in  those  sections  of  the  District  Court 
of  the  county  or  district  in  which  the  election  is  held.  Sec- 
tion 11  of  article  22  of  the  Constitution  of  1879  is  self- 
executing,  and  made  all  laws  applicable  to  the  former  judicial 
system  applicable  to  the  judicial  system  created  by  the  Con- 
stitution until  changed  by  legislation,  and  the  Constitution  did 
not  repeal  those  sections  as  inconsistent  with  it,  but  preserved 
them  in  force  until  changed  by  legislation.^-''' 

§  49b.  The  same  —  person  or  property  in  another  state. 
Where  the  Superior  Court,  as  a  court  of  equity,  has  jurisdiction 
over  the  person  of  the  defendant,  it  has  power  to  decree  a 
conveyance  by  him  of  property  outside  of  the  state.^^^ 

123  People  V.  Mier,  24  Cal.  Gl ;  affiruied  in  Bell  v.  Crippen,  28  id. 
327;  Courtwright  v.  Bear  River  &  Auburn  Water  &  Min.  Co.,  30 
id.  .581:  and  Mahlstadt  v.  Blanc,  34  id.  580. 

124  Bell  V.  Crippen,  28  Cal.  327. 

125  City  of  Santa  Barbara  v.  Eldred,  95  Cal.  378. 

126  Arroyo  Ditch  &  Water  Co.  v.  Superior  Court,  02  Cal.  47; 
27  Am.  St.  Rep.  91. 

127  Wifkersham  v.  Brittan,  93  Cal.  34. 

128  Walsh  V.  Walsh,  84  Cal.  TOO;  and  see  Loaiza  v.  Superior 
Court,  85  id.  11;  20  Am.  S4;.  Rep,  197. 


31  jURiSDiCTiox.  §§  49c-49e 

§  49c.  The  same  —  lost  record.  When  the  court  has  once 
acquired  jurisdiction,  it  is  not  lost  by  a  failure  to  preserve  a 
record  of  the  acts  by  which  it  was  acquired,  and  the  acts  of 
the  court  in  exercising  its  inherent  power  to  amend  its  record, 
or  to  supply  a  lost  record,  will  be  presumed  to  have  been 
properly  exercised.^^ 

§  49d..  The  same  —  priority  —  state  and  federal  courts.  When 
the  Circuit  Court  of  the  United  States  has  first  acquired  juris- 
diction of  the  persons  and  subject-matter  of  an  action  before 
the  commencement  of  a  subsequent  action  in  a  state  court 
between  the  same  persons,  essentially  involving  or  depending 
upon  the  same  subject-matter,  the  judgment  of  the  Circuit 
Court,  no  matter  when  rendered,  whether  before  or  after  the 
date  of  judgment  in  the  state  court,  becomes  binding  and  con- 
clusive as  to  that  subject-matter,  upon  all  parties  and  upon 
all  other  courts  and  tribunals  whatsoever.^^*^  And  it  is  an  es- 
tablished general  principle  that  the  court  which  first  takes 
cognizance  of  a  controversy  is  entitled  to  retain  jurisdiction  to 
the  end  of  the  litigation,  and  incidentally  to  take  possession 
and  control  of  the  subject-matter  of  the  suit  to  the  exclusion 
of  all  interference  from  other  courts  of  concurrent  jurisdiction, 
whether  state  or  federal. ^^^ 

§  49e.  Jurisdiction  —  District  Court  of  Colorado.  The  judges 
of  the  District  Court  of  Colorado  may  hold  courts  for  each 
other,  and  it  is  their  duty  to  do  so  under  certain  circumstances. 
And  when  a  district  judge  holds  a  term  of  court  outside  his 
own  district,  his  authority  so  to  do,  and  to  try  the  cause  pending 
in  such  court,  will  lie  presumed  unless  tlie  contrary  a]ipears.^^- 
Bnt  two  or  more  district  judges  can  not  lawfully  sit  and  act 
together  as  a  District  Court,  except  as  they  sit  in  l)ank  for 
certain  purposes  specified  by  statute.  Act  of  April  2,  1887, 
§  .3.  In  the  trial  of  causes,  and  in  the  hearing  and  determina- 
tion of  any  matter  of  purely  judicial  cognizance  ponding  in 
the  District  Court,  each  judge  must  sit  and  act  alone. '^^ 

12J>  Sifhler  V.  Look.  03  fal.  nW). 

"'>  Sharon  v.  Sliaron.  H4  Cal.  424.  See,  as  to  conflict  of  jnris- 
dlffion  l>etwfpn  superior  courts  as  to  matter  of  jjuardiansliip. 
Matter  of  r;uan1ian.sliii»  of  Danuelvcr,  (',7  f'al.  CA'A. 

i-T  Tlionijison  v.  Ilolladay.  1."i  Oreir.  l'>\\  Oh  Cliow  v.  Rrockway, 
21   id.  440. 

132  Knipirp,  etc..  r'aiial  f'o.  v.  Eutrloy.  It  C'^l.  289. 

133  People  V.  I>i.strict  Court,  14  Col.  39G. 


§§  ■i9f-49h  GENERAL   PRINCIPLES.  32 

§  49f .  Jurisdiction  —  Colorado  Court  of  Appeals.  The  act  of 
the  Cokn-ailo  k^gishitiiro  creating  the  Court  of  Appeals  is  con- 
stitutional.^^'* But  the  court  thus  created  is  subject  to  the 
superintending  control,  and  guided  by  the  decisions,  of  the 
Supreme  Court.  In  all  cases  that  might,  under  any  circum- 
stances, go  in  the  lirst  instance  to  the  Supreme  Court,  the 
judgment  of  the  Court  of  Appeals  is  still  subject  to  review  by 
the  superior  tribunal.^^^  The  judgment  of  the  Court  of  Ap- 
peals upon  constitutional  questions  is  not  conclusive,  but  is 
subject  to  review  by  the  Supreme  Court.^'^^  Such  questions 
are  without  the  final  jurisdiction  of  the  Court  of  Appeals,  and 
are  never  considered,  unless  essential  to  the  settlement  of  the 
rights  of  the  parties  to  the  controversy. ^^^ 

§  49g.  Jurisdiction  —  Montana  District  Courts  —  terms.      Under 

section  523  of  the  Montana  Code  of  Civil  Procedure,  which  pro- 
vides that  each  of  the  District  Courts  shall  have  power  to  make 
rules  and  regulations  governing  their  practice  and  procedure, 
in  reference  to  all  matters  not  provided  for  by  law,  a  district 
judge  has  power  to  designate  the  times  when  the  terms  of  his 
court  shall  begin.  Under  the  Constitution  and  statutes  of 
Montana  a  District  Court  without  terms  is  a  legal  impossi- 
bility.^^^  The  probate  courts  of  Montana  have  no  power  or 
authority  to  entertain  a  petition  involving  the  construction  of 
a  will.  Such  jurisdiction  can  be  exercised  by  the  Supreme  and 
District  Courts  only.  And  where  the  Probate  Court  has  no 
power  to  entertain  the  subject-matter  of  a  petition,  there  can 
be  no  appeal  from  its  decision  to  the  District  Court,  nor  from 
the  District  Court  to  the  Supreme  Court. ■^^'^ 

§  491i.  Jurisdiction  —  District  Courts  of  North  Dakota.  The 
District  Courts  of  North  Dakota  luivo  power  to  issue  writs  of 
habeas  corpus,  mandamus,  quo  ZL'arranto,  certiorari,  and  injunc- 
tion.    And  upon  these  courts  is  devolved  the  duty  of  assuming 

134  In  re  Court  of  Appeals,  15  Col.  578. 

135  People  V.  Richmond,  IG  Col.  274;  see  §  40,  ante. 

13C  Denver  City  R.  R.  Co.  v.  Denver,  2  Col.  App.  34;  Henderson 
V.  Ijthofrraphiner  Co..  Id.  251. 

137  f'arlile  v.  Ilnrd,  3  Col.  App.  11.  A  jurisdictional  question  may 
be  raised  for  the  first  time  in  the  appellate  court.  Taylor  v. 
Derry.  4  Cbl.  App.  109. 

138  State  V.  Mfllatton,  10  Mont.  370. 
i39Chadwlck  v.  Chadwiek,  6  Mont.  566. 


33  JURISDICTION.  §§  49i-50 

original  cognizance  of  all  ordinary  cases  which,  are  remediable 
by  means  of  such  writs.^**^ 

§  49i.  Jurisdiction  —  District  Courts  of  Oklahoma.  The  Dis- 
trict Courts  of  Oklahoma  are  creatures  of  the  federal  Congress, 
and  derive  their  powers  and  authority  from  the  laws  of  the 
United  States."^ 

I  49j.  Jurisdiction  —  Oregon  Circuit  Courts.  By  the  Consti- 
tution of  Oregon  (art.  7,  §  9),  all  judicial  powers,  authority 
and  jurisdiction  not  vested  by  the  Constitution,  or  by  laws 
consistent  therewith,  exclusively  in  some  other  court,  shall  be- 
long to  the  Circuit  Courts.^'*^ 

§  49k.  Jurisdiction  -  Washington  Superior  Courts.  The  Con- 
Btitutiou  of  Washington  (art.  -A,  §  4),  giving  the  Supreme  Court 
original  jurisdiction  in  quo  zvarranto  and  mandamus  as  to  all 
state  officers,  does  not  include  the  jurisdiction  of  Superior 
Courts  in  the  issuance  of  injunctions  against  state  officers. 
The  jurisdiction  of  the  Supreme  Court  is  not  exclusive.^'*^  The 
Superior  Courts  of  this  state  have  concurrent  jurisdiction  with 
justices  of  the  peace  where  the  sum  sued  for  is  less  than  one 
hundred  dollars.^^'* 

§  491.  Jurisdiction  —  Wyoming  District  Court  —  probata 
The  Territorial  Probate  Court  and  the  office  of  probate  judge 
were  abolished  on  the  adoption  of  the  state  Constitution  of 
Wyoming,  which  confers  on  the  District  Court,  among  other 
things,  exclusive  original  jurisdiction  "  in  all  matters  of  pro- 
bate "  (art.  5,  §  10)."= 

§  50.  Jurisdiction  of  Justices'  Courts  in  California.  The 
legislature  lias  power  to  determine  the  number  of  justices  of 

140  North  Daknta  v.  Nrtson  County,  1  N.  I»ak.  SS.  lOl;  soo  §  41, 
ante. 

141  Stanley  v.  T'nltrd  St:itrs,  1  (>kl.  .''.■'.<;;  and  seo  /T.v  /'or/r  Murphy, 
Id.  *>S. 

142  ^•(.rdl<■r  V.  I'.iKii''.  K'  <  »rr;,'.  L'iks;  Aiken  v.  Aiken,  VI  id.  20.''.:  see 
S  42,  ante.  No  teiTitorl.-il  limit  is  fixed  hy  i1h>  ConstiltiliDU  of 
Colorado  to  the  civil  Juri.'^dietion  either  of  tiie  District  Couits  or 
of  the  fViunty  Courts.  Fletcher  v.  Stowell,  17  Col.  94;  In  re  Rogers, 
14  Id.  20. 

I43.1nne8  v.    TJeed.   .''.   Wash.    St.  Ul. 
144  State  V.   Hunter.  .'{  Wash.  St.  02. 
1*5  Ex  parte  Berfninn,  .3  Wyo.  395. 

Vol.  I — 5 


g  50  OENKK.M,    ritlNCll'LKS.  34 

tlio  peace  to  he  elected  in  townships,  ineorporatcd  cities  and 
towns,  or  eities  aiul  counties,'^"  and  may  lix  hy  hiw  the  powers, 
dnties,  and  responsibilities  ol  such  olUeers,  provided  such  powers 
shall  not  in  any  ease  trench  ii})on  the  juristliction  of  the 
several  eonrts  t)i'  record,  except  that  said  jnstices  shall  have 
concnrrent  jurisdiction  with  the  Superior  Courts  in  cases  of 
forcible  entry  and  detainer,  where  the  rental  value  does  not 
exceed  twenty-five  dollars  ])er  month,  and  where  the  whole 
amount  of  damages  claimed  does  not  exceed  two  hundred  dol- 
lars, and  in  cases  to  enforce  and  foreclose  liens  on  personal 
property  where  neither  the  amounts  of  the  liens  nor  the  value 
of  the  property  amounts  to  three  hundred  dollars. ^'*'^  In  ad- 
dition to  the  jurisdiction  given  them  concurrent  with  the  Su- 
perior Courts,  Justices'  Courts  have  civil  jurisdiction  within 
their  respective  townships  or  cities,  in  actions  arising  on  con- 
tracts for  the  recovery  of  money  only,  if  the  sum  claimed,  ex- 
clusive of  interest,  does  not  amount  to  three  hundred  dollars; 
in  actions  for  damages  for  injury  to  the  person,  or  for  taking, 
detaining,  or  injuring  personal  property,  or  for  injury  to  real 
property  where  no  issue  is  raised  by  the  verified  answer  of  the 
defendant,  involving  the  title  to  or  possession  of  the  same,  if 
the  damages  claimed  do  not  amount  to  three  hundred  dollars; 
in  actions  to  recover  the  possession  of  personal  property,  if  the 
value  of  such  property  does  not  amount  to  three  hundred  dol- 
lars; in  actions  for  a  fine,  penalty,  or  forfeiture,  not  amount- 
ing to  three  hundred  dollars,  given  by  statute,  or  the  ordinance 
of  an  incorporated  city  and  county,  city  or  town,  where  no  is- 
sue is  raised  by  the  answer  involving  the  legality  of  any  tax, 

146  Section  103  of  the  Code  of  Civil  Procedure,  as  amended  by- 
act  of  Marcli  31,  1891,  provides  for  tlie  organization  of  Justices' 
Courts,  and  tlie  election  of  justices  of  tlie  peace  for  V)otli  tcnvnsliips 
and  cities.  Tlie  office  of  justice  of  the  peace  is  a  creation  of  the 
Constitution,  and  can  not  be  created  by  any  city  charter,  and 
such  officer  is  elected  at  a  general  state  election,  and  qualities  under 
the  general  law  of  the  state.  People  v.  Sands,  102  Cal.  12;  R.r  parte 
Armstrong,  ,84  id.  G.55.  In  Colorado,  justices  of  the  peace  are 
constitutional  officers.     Pueblo  County  v.  Smith,  22  Col.  534. 

147  Cal.  Const.  (1879),  art.  6,  §  11.  The  tests  of  the  jurisdiction 
of  a  Justice's  Court  in  an  action  of  forcible  entry  and  detainer  are 
twofold,  viz.:  1.  The  plaintiff  must  not  claim  more  than  ?200 
damages  in  all,  and  can  not  recover  more;  and  2.  The  rental  value 
of  the  property  must  not  exceed  ^2~>  a  mouth  as  a  matter  of  fact, 
to  be  determined  by  the  evidence.  Ballerino  v.  Bigelow,  90  Cal. 
500. 


35  JURISDICTION.  §  50a 

impost,  assessment,  toll,  or  muuicii^al  fine;  in  actions  upon 
bonds,  or  undertakings  conditioned  for  the  payment  of  money, 
if  the  sum  claimed  does  not  amount  to  three  hundred  dollars, 
though  the  penalty  may  exceed  such  sum;  to  take  and  enter 
judgment  for  the  recovery  of  money  on  the  confession  of  a 
defendant,  when  the  amount  confessed,  exclusive  of  interest, 
does  not  amount  to  three  hundred  dollars.^'*^  Such  jurisdic- 
tion does  not  extend,  however,  to  any  action  or  proceeding 
against  ships,  vessels,  or  boats,  for  the  recovery  of  seamen's 
wages  for  a  voyage  performed  in  whole  or  in  part  without  the 
waters  of  the  state. ^■*'*  The  civil  jurisdiction  of  such  court  ex- 
tends to  the  limits  of  the  city  or  township  in  which  they  are 
held,  but  mesne  and  final  process  may  be  issued  to  any  part  of  the 
county  in  which  they  are  held.^^*^  A  justice  of  the  peace  has 
no  power  to  vacate  or  set  aside  a  judgment  rendered  by  him, 
except  upon  a  motion  for  a  new  trial.^^^ 

§  50a.  Further  as  to  jurisdiction  of  Justices'  Courts.  Section 
110  of  the  ('ode  of  Civil  rroceduro  provides  that  the  terms  of 
office  of  justices  of  the  peace  shall  be  two  years  from  the  1st 
day  of  January  next  succeeding  their  election.  And  this  pro- 
vision of  the  statute  is  declared  to  be  constitutional.^^^  Until 
the  qualification  of  the  person  duly  elected  or  appointed  to  the 
office,  the  former  incumbent  is  legally  entitled  thereto. -^^^     A 

148  Code  Civ.  Pro.,  §  12. 

I4t»ld.,  §  114. 

150  Id.,  §  10(;.  The  r-riminal  .iurisdiction  of  .Justices'  Courts  is 
fi.xed  by  section  ll.".  of  llie  Code  of  Civil  Procedure.  As  to  tlie 
orjianization  of  Justices'  Courts  iu  tlie  city  and  county  of  Sau 
("rancisco,  under  tlie  Consolidation  Act,  see  Harston's  Practice,  50 
et  scq-  T'nder  the  Municipal  Con>or:ition  Act  the  recorder  of  the 
city  of  Fresno  may  have  a  dual  jurisdiction  and  functions,  and 
may  be  a  justice  of  the  peace  as  to  some  matters,  and  a  recorder 
as  to  otliers.  Prince  v.  City  of  Fresno.  8S  Cal.  407.  See,  as  to 
jurisdictifui  of  .Fust ice's  Court  of  San  .lose  over  public  offenses. 
In  re  r'arrilio,  (U!  id.  .''.. 

if'i  Winter  v.  I'itzpntriclv.  :'.."•  T'al.  LKitt.  T'nder  section  S."9  of  the 
Code  of  Civil  I'rocedure,  a  .Itisfic-c's  Court  has  no  power  to  vacate 
Its  judtrments,  exccjtt  judf,'mcnts  by  default.  Weimmcr  v.  Sutlier- 
land,  74  Cal.  .'Ml. 

1^2  P,alley  v.  I'.nard  <,r  Supervisors,  (;<".  Cal.  10;  and  see  Slicarer  v. 
City  of  Dakland.  07  id.  (^3;  People  v.  Sands,  102  Id.  12. 

ir-s  French  v.  County  of  Santa  Clara,  09  Cal.  r»19:  City  of  Platte- 
ville  v.  Bell,  00  Wis.  ?,2n.  See,  as  to  fillinjr  vacancies  in  tlie  otlice. 
Id.;  reo[ilo  v.  Sands,  102  Cal.  12;  State  v.  Cronin.  .5  Wasli.  St.  398. 


§  50a  GENERAL  PRINCIPLES.  36 

Justice's  Court  being  an  inferior  court,  its  jurisdiction  must  be 
shown  jillirnialively  by  u  i)arty  relying  upon  or  claiming  any 
right  or  title  uuikM-  its  judgments.'^"*  The  powers  conferred 
ujion  j-uc-h  courts  by  the  statute  must  be  strictly  pursued.^^"^ 
And  thoir  ])o\VL'rs  are  thus  determined:  When  that  part  of  the 
(.'i»de  of  Civil  Trocedure  which  expressly  deals  with  proceedings 
in  .lustiees'  Courts  prescribes  the  powers  of  tliose  courts  in  re- 
lation to  a  general  subject  about  which  the  powers  of  courts  of 
record  are  expressly  prescribed  in  another  part  of  the  Code, 
then  the  powers  of  the  Justices'  Courts  with  respect  to  that 
subject  are  to  be  determined  by  the  provisions  of  the  Code  ex- 
pressly applicable  to  them,  and  not  by  the  provisions  expressly 
applicable  to  courts  of  record.^^^  A  Justice's  Court  has  juris- 
diction of  an  action  to  recover  a  deposit  made  by  a  vendor 
under  an  executory  contract  for  the  sale  of  land,  by  which  he 
agreed  to  purchase  the  land  if  the  title  was  good,  and  in  which 
it  was  stipulated  that  if  the  title  should  not  be  good,  the  de- 
posit was  to  be  returned.^^'^  So,  the  personal  liability  of  a  stock- 
holder for  his  proportion  of  the  indebtedness  of  the  corpora- 
tion is  an  obligation  arising  upon  contract,  within  the  meaning 
of  section  112  of  the  Code  of  Civil  Procedure,  giving  original 
jurisdiction  to  a  Justice's  Court  in  actions  arising  upon  con- 
tract for  the  recovery  of  money,  when  the  amount  claimed  is 
less  than  three  hundred  dollars.^^^  So,  a  Justice's  Court  has 
jurisdiction  of  an  action  to  recover  a  sum  of  money  less  in 
amount  than  three  hundred  dollars  for  a  fine,  penalty,  or  for- 
feiture given  by  statute  or  ordinance  of  a  municipal  corpora- 
tion, provided  no  question  of  the  legality  of  any  tax,  impost, 
assessment,  toll,  or  municipal  fine  is  raised. ^^^  So,  an  action 
in  Justice's  Court  by  the  assignee  of  funds  in  the  hands  of  a 
receiver  is  an  action  at  law  in  assurnl^sit,  and  not  a  suit  in  equity, 
and  is  within  the  jurisdiction  of  the  Justice's  Court,  if  the  fund 
sued  for  is  less  than  three  hundred  dollars,  and  is  within  the 
appellate  jurisdiction   of  the   Superior  Court.^^°     And  where 

i'4  Eltzroth  v.  Ryan,  89  Cal.  135. 
]•'■••'■'  .Tones  v.  .Justice's  Court,  97  Cal.  523. 
i5fi  Weimmer  v.  Suthorlaiul,  74  Cal.  341. 
i-^'T  Schroeder  v.  Wittram,  fiO  Cal.  030. 
i^'S  Donnis  v.  Superior  Court,  91  Cal.  .548. 

I'-f*  Williams  v.  McCartney,  69  Cal.  .550;  Culbertson  v.  Kinevan, 
r>fi  id.  490. 
ICO  Gamiss  v.  Superior  Court,  88  Cal.  413. 


37  JURISDICTION".  §  50b 

the  consideration  of  a  note  sued  upon  in  a  Justice's  Court  by 
a  private  corporation  to  which  the  note  was  executed  is  assailed 
upon  the  ground  that  it  was  given  for  an  illegal  assessment  upon 
the  stock  of  the  corporation  plaintiff,  the  Justice's  Court,  hav- 
ing jurisdiction  of  the  amount  of  the  note,  has  full  jurisdiction 
to  determine  all  questions  relating  to  the  assessment,  and  has 
no  authority  to  certify  the  pleadings  to  the  Superior  Court. ^^'^ 
But  neither  the  Justice's  Court  nor  the  Superior  Court  on  ap- 
peal has  jurisdiction  of  an  action  to  recover  the  possession  of 
specific  personal  property  alleged  to  exceed  three  hundred  dol- 
lars in  value,  although  the  complaint  prays  judgment  for  a  less 
amount  in  case  possession  can  not  be  had.^''^ 

§  50b.  The  same  —  continued.  The  jurisdiction  of  a  Justice's 
Court  does  not  extend  to  an  action  in  which  the  title  to  real 
property  comes  in  question.^^^  And  where,  in  an  action  in  Jus- 
tice's Court,  the  defendant  interposed  an  answer  raising  an 
issue  of  title  and  offered  proof  under  it,  it  was  held  that,  upon 
the  offer  of  proof,  the  jurisdiction  of  the  justice  ceased  and 
the  judgment  afterwards  rendered  was  void.^^^  But  a  Justice's 
Court  has  jurisdiction  of  an  ordinary  trespass  to  real  property, 
when  the  plaintiff  can  establish  his  right  without  being  obliged 
to  establish  his  title  to  the  property.^^^  And  where  the  plead- 
ings do  not  show  upon  their  face  that  the  title  or  possession  of 
property  is  necessarily  involved,  but  only  that  it  may  contin- 
gently become  involved,  the  justice  of  the  peace  has  jurisdic- 
tion to  try  the  cause  and  to  render  a  final  judgment.  If,  how- 
ever, it  appears  that  the  predicted  contingent  events  actually 
occur  on  the  trial,  it  is  then  the  duty  of  the  justice  to  decline 
to  hear  evidence  touching  the  question  of  possession,  and  to 
certify  the  ease  to  tlie  Superior  Court. ^^°  When  a  Justice's 
Court  once  obtains  jurisdiction  over  the  subject-matter  of  an 
action,  its  jurisdiction  continues  until   the   action   is   legally 

101  Arroyo  Ditch  &  \\'ater  Co.  v.  Suporior  Court,  1)2  Cal.  47;  27 
Am.  St.  Kop.  9t. 

ic2Shealor  v.  Sni)erior  Court,  70  Cal.  5(14. 

163  Aiken  v.  Aila-ii.  12  Oreir.  203;  Ducheneau  v.  House,  4  Utah, 
309;  Tordscn  v.  Oiiiinier,  37  Minn.  211. 

i«4  Mnrrj'  v.  Burris,  (>  Dak.  170. 

ifif' Swcek  V.  Oalbroath,  11  Oros.  rA(\.  So  in  cases  of  forcible 
entry  or  unlawful  detention.  Haniill  v.  Bank  of  Clear  Creek  Co., 
22  Col.  384. 

166  Hart  V.  Carnall-Hopkins  Co.,  103  Cal.  132. 


g  50b  GENEKAL    riil^Cll'LES.  38 

disposed  of  by  siuli  court. ^'"'"  Aiul  a  Justice's  Court  has  no 
power,  in  tlio  absence  of  a  statute  expressly  conferring  it,  to 
set  aside  its  own  judgnielit  duly  rendered,  either  upon  issue 
joined,  or  for  want  of  an  answer,  or  to  grant  a  new  trial,  or 
leave  to  answer.^^  Under  the  Constitution  of  the  state  of 
Washington,  justices  of  the  peace  have  no  jurisdiction  in  causes 
in  which  the  demand  or  value  of  the  property  in  controversy  is 
one  hundred  dollars  or  more.^""  And  a  justice  of  the  peace 
has  no  jurisdiction  of  an  action  for  the  recovery  of  a  sum  due, 
and  interest  thereon,  arising  out  of  a  contract  for  the  payment 
of  money,  when  the  total  amount  of  the  claim  is  brought  in 
excess  of  the  sum  of  one  hundred  dollars,  by  the  addition  of  the 
interest  thereon.^"°  Whenever  the  act  regulating  the  juris- 
diction of  justices  of  the  peace  provides  the  remedies  when  a 
litigant's  rights  are  not  respected  by  the  magistrate,  these 
remedies  must  be  taken  to  be  exclusive.^'^^ 

167  Southern  Pac.  Co.  v.  lUissell,  20  Oreg.  459. 

168  American  Building,  etc.,  Ass'n  v.  Fulton.  21  Oreg.  492;  see, 
also,  State  v.  Boettger,  39  Mo.  App.  G84;  Weeks  v.  Etter,  81  Mo. 
375;  Heinlen  v.  Phillips,  88  Cal.  557. 

169  Moore  v.  Perrott,  2  Wash.  St.  1. 

170  state  V.  Superior  Court,  9  Wash.  St.  369.  A  justice  of  the 
peace  does  not  acquire  jurisdiction  of  the  subject-matter,  if  the 
complaint  fails  to  allege  that  the  property  in  controversy  is  within 
the  same  county  as  the  Justice's  Court.  Woodbury  v.  Henningsen, 
11  Wash.  St.  12. 

171  Wood  V.  Lake,  3  Col.  App.  284.  Duty  of  justice  of  the  peace 
on  appeals.  See  Cal.  Code  Civ.  Pro.,  §  977,  as  amended  by  act  of 
1897. 


CHAPTER  III. 

PLACE    OF    TRIAL. 

§  51.  Place  of  trial  — in  general.  The  remedy  being  se- 
lected, and  the  jurisdictiou  of  the  various  courts  being  hxed, 
the  next  inquiry  is  in  what  county  shall  the  proceedings  be  had. 
The  Code  of  Civil  Procedure  of  California  provides  that  actions 
must  be  tried  in  a  particular  county  or  district,  having  refer- 
ence: 1.  To  the  place  where  the  subject-matter  in  controversy 
is  situated;  or  2.  To  the  place  where  the  cause  of  action  arose; 
or,  3.  To  the  place  where  the  parties  to  the  action  reside,  ac- 
cording to  the  nature  of  the  questions  involved.  Thus,  real 
actions,  or  actions  affecting  real  property,  have  a  tendency  to 
a  fixed  and  local  jurisdiction;  while  personal  actions  are  transi- 
tory in  their  character.  But  in  the  United  States  generally, 
and  particularly  in  California,  the  distinction  1:)ct\veen  local  and 
transitory  actions,  so  far  as  any  consequence  attends  it,  depends 
entirely  upon  statutory  law,  and  does  not  coincide  with  or  de- 
pend upon  the  distinction  between  actions  /;;  roii  and  actions  in 
personam} 

§  52.  Actions  to  be  tried  where  the  subject-matter  is  situated. 
The  actions  wliich  are  to  be  tried  wbero  tlie  eubjecl-niatliT,  or 
some  part  thereof,  is  situated,  subject  to  a  change  of  the  place 
of  trial,  are  as  follows:  Actions  for  the  recovery  of  real  prop- 
erty, or  of  an  estate  or  interest  therein,  or  for  the  determina- 
tion, in  any  form,  of  such  right  or  interest,  and  for  injuries  to 
real  property:  actions  for  the  partition  of  land;  actions  for  the 
foreclosure  of  all  liens  and  mortgages  on  real  property.  Where 
the  real  property  is  situated  partly  in  one  county  and  partly 
in  another,  the  plaintiff  may  select  either  of  the  counties,  and 
the  county  so  selected  is  the  proper  county  for  the  trial  of  such 
action.^ 

1  Fresno  National  Rank  v.  Snperior  Ponrt.  Sf?  Cal.  '4m. 

2Cal.  ('o<lo  Civ.  Pro.,  §  '.V.V2\  N.  V.  Cndc  Civ.  Pro.,  S  !)91 :  Mont. 
Code  Civ.  Pro.,  §  <;10;  Hfx.lvwalt.r  v.  (•..nnul,  l.l  Mont.  ACA;  Col. 
Civ.  Code,  S  L'.":  Nasirs  Oliio  PI.,  i.p.  ic,  it;  Wasii.  Ter.,  §  37;  Idaho, 
I  18;  Ariz.,  §  18.    In  CalifomJa  the  Constitution  of  1879,  article  6, 


§  r>'.'  GENERAL    riUNCU'LES.  40 

i5y  the  laws  of  Oregon-''  the  recovery  of  personal  property 
is  included  in  this  section,  and  is  made  a  local  action;  while 
the  laws  of  Arizona  iiichuK'  mining  cUiims,  hut  uudvc  no  pro- 
vision for  the  contingency  of  the  ])roperty  or  estate  lying  in 
contiguous  counties."*  ]n  California,  also,  mining  claims  are  in- 
cluded under  the  provisions  of  this  section/'  And  while  it 
provides  for  the  trial  in  certain  counties,  the  situation  of  the 
premises,  not  the  residence  of  the  parties,  determines  the 
county.'^ 

The  statutory  requirements  do  not  apply  to  actions  for  lands 
lying  out  of  the  state,'^  but  to  actions  for  the  possession  of 
real  property  within  the  statc,^  or,  for  the  determination  of  a 
right  or  interest  therein;^  or,  for  the  recovery  of  title  thereto;^*^ 
or,  for  the  foreclosure  of  mortgages  thereon.^^ 

section  5,  provides  tliat  all  actions  for  the  recovery  of  the  posses- 
sion of.  (luietiug;  the  title  to,  or  for  the  enforcenieut  of  liens  upon 
real  estate,  shall  be  connueueed  in  the  eonuty  in  which  the  ival 
estate  or  any  part  thereof  affected  by  such  action  or  actions,  is 
situated.  Whether,  in  view  of  this  constitutional  provision,  a  court 
other  than  the  one  designated  therein  would  have  jurisdiction  of 
an  action  affecting  real  estate  commenced  out  of  such  county, 
quaere-  Such  provision,  however,  only  applies  to  the  comnience- 
meut  of  the  action.  It  does  not  prevent  a  change  of  venne,  when 
a  cause  therefor  exists,  such  as  the  disqualification  of  the  Judge 
of  tlie  county  in  which  the  land  is  situated.  Hancock  v.  Burton, 
(;i  Cal.  70.  Lands  in  several  counties.  See  Pennie  v.  Visher,  94  id. 
323.  Venue  of  land  suit  on  division  of  county.  Bent  v.  llailway 
Co.,  3  N.  Mex.  158;  Bookwater  v.  Conrad,  15  Mont.  4CA;  Security 
Loan,  etc.,  Co.  v.  Kanffman,  108  Cal.  214.  In  Washington  Terri- 
toi-y  all  actions  for  the  causes  mentioned  in  section  48,  Laws  of 
1877,  nnist  be  commenced  in  the  county  or  district  in  which  the 
subject  of  the  action  lies.  The  court  of  no  other  county  or  district 
has  jurisdiction  thereof.  Wood  v.  Mastick,  2  West  Coast  Rep.  549; 
see  State  v.  Superior  Court,  5  Wash.  St.  (GO. 

3  Hill's  An.  Code,  §  42;  and  see  Moorhouse  v.  Donaca,  14  Oreg. 
430. 

4  Code  of  Arizona,  §  IS. 

5  Watts  V.  White,  13  Cal.  321. 

6  Doll  V.  Feller,  10  Cal.  433. 

7  Newton  v.  Bronson,  13  N.  Y.  587;  07  Am.  Dec.  89;  Mussina  v. 
Belden.  0  Abb.  Pr.  105. 

SMairs  v.  Itamsen,  3  Code  R.  138. 

9  Wood  V.  Ilollister,  3  Abb.  Pr.  14;  Starks  v.  Bates,  12  How.  Pr. 
405. 

10  Ring  V.  :\IcCoun,  3  Sandf.  524;  .Wood  v.  Ilollister,  3  Abb.  Pr.  14; 
Newton  t.  Bronson,  13  N.  Y.  .587;  07  Am.  Dec.  89. 

iiYallejo  v.  Randall,  5  Cal.  401;  :\rarsh  v.  L0W17,  20  Barb.  197; 


4:1  PLACE    OF   TRIAL.  §  52a 

§  52a.  Place  of  trial  —  actions  affecting  lands.  Among  ac- 
tions held  to  be  local  by  reason  of  affecting  real  property  are 
the  following:  Actions  to  condemn  lands  for  the  use  of  a  rail- 
road.^^  An  action  to  have  a  deed  absolute  on  its  face  declared 
to  be  a  mortgage,  and  to  redeem  the  same.^^  An  action  for  the 
reformation  of  a  contract  for  the  sale  of  land.^^  An  action  to 
foreclose  a  vendor's  lien  on  realty.^^  An  action  to  set  aside  a 
fraudulent  sale  of  land  by  an  administrator.^^  An  action  to 
dissolve  a  mining  copartnership  when  the  determination  of  the 
respective  estates  or  interests  of  the  partners  in  the  mining 
claims  is  involved  in  the  action.^"  An  action  to  quiet  title  to 
real  estate.^*  An  action  for  injuries  to  land;^^  or  to  restrain 
threatened  injury  to  land;^*^  or  to  abate  a  nuisance  to  land.-^ 
And  it  is  held  that  an  action  to  foreclose  a  logger's  lien  is  prop- 
erly brought  in  the  county  where  the  logs  were  cut  and  the 
lien  notice  filed,  regardless  of  the  fact  that  the  logs  are  in 
another  county.^  But  an  action  for  the  enforcement  of  a 
trust,  and  for  an  accounting  thereunder,  is  a  transitory  one, 

1(]  Mow.  rr.  41;  Wood  v.  Ilollister.  3  Abb.  Pr.  14;  Rogers  v.  Cady, 
104  Cal.  288;  43  Am.  St.  Kei).  100;  Territory  v.  District  Court,  5 
Dak.  275;  but  see  Rawls  v.  Carr,  17  Abb.  Pr.  96;  Starks  v.  Bates, 
12  How.  Pr.  4tiii;  Ring  v.  McCoim,  3  Saudf.  524.  As  to  the  local 
jurisdiction  of  the  same  tril)unal  of  a  controversy  affecting  prop- 
erty witliin  its  limits,  see  Nicliols  v.  Romaine,  9  How.  Pr.  512. 
.\ti  action  for  tlie  diversion  of  Avater  from  the  plaintiff's  ditch  may 
be  brought  in  citlier  of  the  counties  in  wliich  such  ditch  is  situated, 
altliougli  tiic  defendant's  place  of .  business  is  in  the  other  county 
where  the  act  c()m|)lained  of  was  committed.  Lower  King's  River, 
etc.,  Co.  V.  King's  River,  etc.,  Co.,  00  Cal.  408;  People's  Ditch  Co. 
V.   King's  River,  etc.,  Co.,  1  West  Coast  Rep.  473. 

1^  California,  etc.,  R.  R.  Co.  v.  Southern  Pac.  R.  R.  Co.,  05  Cal. 
409. 

13  Raker  v.  Flreriinn's  Fund  Ins.  Co.,  73  Cal.  182;  Smith  v.  Smith, 
88  Id.  572. 

14  Franklin  v.   Dutton,  79  Cal.  005. 
>f'  Frton  v.  Woolsey,  S7  Cal.  38. 

i"  Sloss  V.  I  )e  'I'oro.  77  Cal.  129. 
'7  Clark  V.  Hrown.  S3  Cnl.  181. 

'«  Frltts  V.   Camp.  91   CmI.   .".93;   Pacific  Yacht   Club  v.   Sansalito 
I '.ay  Water  Co..  98  Id.  4S7. 
'(•McLf'od  v.  Ellis,  2  Wash.  St.  117. 
-'"  Drlnkhoviso  v.  Si)rlng  Vnlley  Water  Co.,  80  Cal.  308. 

21  City  of  Mar>-svllle  v.  .North  Rloomfleld  Gravel  MIu.  Co.,  G6 
Cal.  343. 

22  0verbeck  v.  Calligan,  0  Wash.  St.  342. 

6 


§§  53,   54:  GEJsEKAL    I'UlNC'll'LES.  42 

iiTcspcctive  of  the  fact  tliat  the  action  will  take  efTcet  upon  real 
property.^  So,  an  luiiou  Tor  the  specilie  performance  of  a 
(.'ontract  to  convey  laiul  is  held  to  \)v  transitory,  and  ne('(l  not 
be  brought  in  the  county  where  the  land  is  situated.^  So  of 
an  action  in  the  nature  of  a  creditor's  bill,  brought  to  set  aside 
a  conveyance  made  by  an  execution  debtor  on  the  ground  of 
fraud.2«" 

§  53.  Actions  against  counties  may  be  commenced  and  tried 
in  any  county  in  the  judicial  district  in  which  such  county  is 
situated,  unless  such  action  is  between  counties,  in  which  case 
it  may  be  commenced  and  tried  in  any  county  not  a  party 
thereto.^" 

§  54.  Action  to  be  tried  where  cause  of  action  arose.  Actions 
must  be  tried  in  the  county  where  the  cause,  or  some  part 
thereof,  arose,  subject  to  the  power  of  the  court  to  change  the 
place  of  trial,  where  the  same  is  for  the  recovery  of  a  penalty 
or  forfeiture  imposed  by  statute;  except  that,  where  it  is  im- 
posed for  an  offense  committed  on  a  lake,  river,  or  other  stream 
of  w^ater,  situated  in  two  or  more  counties,  the  action  may  be 
brought  in  any  county  bordering  on  such  lake,  river,  or  stream, 
and  opposite  to  the  place  where  the  offense  was  committed; 
and  where  the  action  is  against  a  public  officer,  or  person  es- 
pecially appointed  to  execute  his  duties,  for  an  act  done  by  him 
in  virtue  of  his  office,  or  against  a  person  who,  by  his  com- 
mand or  his  aid,  does  anything  touching  the  duties  of  such 

28  state  V.  Superior  Court.  7  Wash.  St.  306;  Reese  v.  Murnan, 
5  id.  373;  Le  Breton  v.  Superior  Court,  G6  Cal.  27;  Bell  v.  Fludd, 
28  S.  Car.  313. 

24  Morgan  v.  Bell,  3  Wash.  St.  554. 

25  Beach  v.  Hodgdon,  06  Cal.  187. 

2*3  Cal.  Code  Civ.  Tro.,  §  394.  This  sertiou  as  amended  by  act  of 
March  3,  1881,  provides  that  "  an  action  against  a  county,  or  city 
and  county,  may  bo  commenced  and  tried  in  such  county,  or 
city  and  county,  unless  such  action  is  brouglit  by  a  county,  or  city 
and  county,  in  wliich  case  it  may  be  commenced  and  tried  in  any 
county,  or  cit^'  and  county,  not  a  party  thereto."  See,  also,  amend- 
ment of  March  10,  1891.  In  the  absence  of  special  statutory  pro- 
visions, .such  suits  are  governed  by  the  usual  rules  of  civil  prac- 
tice; and  Avhere  a  county  was  sued  in  a  judicial  district  of  which 
it  did  not  form  a  part,  but  ar)poared  and  answered  witliotit  ob.iect- 
ing  to  the  .iurisdiction,  it  tliei-eliy  waived  the  right  to  a  change  of 
venue  to  its  own  district.     Clarke  v.  Lyon  County,  8  Nev.  181. 


43  PLACE    OF   TRIAL.  §  55 

officer.^  These  provisions  have  been  held  not  to  apply  to  offi- 
cial neglects  or  omissions,  but  merely  to  affirmative  acts  of 
officers.^     Xor  do  they  apply  to  officers  of  the  United  States.^ 

§  55.  Actions  to  be  tried  where  defendants  reside.  In  all 
cases  except  those  above  mentioned  the  action  must  be  tried  in 
the  county  in  which  the  defendants  or  some  of  them  reside  at 
the  commencement  of  the  action;  or  if  none  of  the  defendants 
reside  in  the  state,  or  if  residing  in  the  state  and  the  county 
in  which  they  reside  is  unknown  to  the  plaintiff,  the  same  may 
be  tried  in  any  county  which  the  plaintiff  may  designate  in 
his  complaint;  and  if  the  defendant  is  about  to  depart  from 
the  state,  such  action  may  be  tried  in  any  county  where  either 
of  the  parties  reside,  or  service  is  had;  subject,  however,  to  the 
power  of  the  court  to  change  the  place  of  trial.^"  As  respects 
transitory  actions,  any  county  where  service  of  summons  may 
be  liad  is  a  proper  county.  Service  within  the  county  where 
the  action  is  brought  is  essential  to  jurisdiction,  but  a  voluntary 
appearance  is  equivalent  to  personal  service.^^  In  actions 
against  corporations,  the  principal  place  of  business  of  the  cor- 
poration is  its  residence,^^  and  the  action  should  be  brought 

27CaL  Code  Civ.  Pro..  §  393;  N.  Y.  Code  Civ.  Pro.,  §  983:  Oreg., 
§  42:  Wash.  Ter.,  §  .38:  Idalio,  §  19;  Ariz.,  id.  In  Ohio  and  Iowa, 
In  addition.  "  an  action  on  the  official  bond  of  an  oflicev."  Nash's 
Ohio  PI.,  §  47;  Iowa  Code,  §  2790;  also,  Park  v.  Garnley,  7  How. 
Pr.  3.'..'".;  People  v.  Hayes,  id.  248;  Brown  v.  Smith,  '24  Barb.  419; 
IIowlan<l  v.  Willetts,  .">  Sandf.  219;  affirmed  in  9  X.  \.  170;  Porter 
V.  Pillsl)in-y.  11  How.  Pr.  240;  People  v.  Cook,  0  id.  448;  Iloiuk  v. 
Lasher,  17  id.  r>20.  An  action  is  properly  commenced  in  the  county 
where  the  cause  of  action  accrued.  Commissioners  v.  Commis- 
sioners, 3  Col.  A  pp.  137. 

2s  Elliott  V.  Cronk's  .\dni'r,  13  Wend.  3.5;  Hopkins  v.  Haywood, 
Id.  20.-;  McMillan  v.  Pichards,  9  C.nl.  420. 

'-"!'  Freeman  v.   Kobinsun,  7   Ind.  321. 

a^Cal.  Code  Civ.  Pro.,  §  395;  1'hurber  v.  Thnrber.  113  Cal.  007; 
N.  Y.  Cod*'  Civ.  Pro.,  §  9K4;  Orep.,  §  44;  Dunliam  v.  Schindlor,  17 
Orec  2.-.<;;  Idaho,  §  20;  Arizona,  §  20. 

^1  Brown  v.  Bri<lpe  Co.,  23  Orep.  7.  V<'nuc  of  action  <>n  note, 
See  Thomas  v.  Colorarlo  .Vat.  Baid<,  11  Col.  .'"til;  McCauley  v.  Mur- 
dock,  97  Ind.  22*t. 

■'2  Jenkins  v.  Califoniia  St<;iiii  Xav.  Co.,  22  Cal.  .-|37;  adinnod  in 
Colin  V.  Cent.  Par.  I!.  11.  Cn.,  71  id.  4SS,  overrtilinp,  as  to  llie  pdint 
of  reslrlcnce  uf  a  <<)riioial  ii'ii,  California,  etc..  R.  K.  Co.  v.  Sonthern 
Pac.  B.  B.  Co.,  0.->  id.  .304;  Same  v.  Same.  id.  400;  Hubbard  v. 
Nat.  Pro.  Ins.  Co.,  11  How.  Pr.  149;  Pond  v.  Hudson  River  R.  R. 
Co..    17    id.   .VJ3.       .\s     to     forfiiTii     corporations,     see     IiiliTiiational 


S  ^'> 


CiH^KKAL    I'KINCll'LKS.  44: 


there.  It  is  held,  however,  that  the  express  words  of  section  IG 
of  article  13  of  the  Constitution  of  California,  providing  where 
a  corporation  "  may  be  sued,"  made  that  section  merely  permis- 
sive, and  not  niandatory.^^  This  section  of  the  Constitution 
can  not  be  construed  as  giving  to  a  corporation  defendant  the 
same  right  to  have  a  personal  action  against  it  tried  in  the 
county  of  its  residence  as  that  which  belongs  to  a  natural  per- 
son who  is  the  defendant.  But  it  gives  to  the  plaintilV  I  he  right 
to  elect  either  to  sue  the  corporation  in  the  county  where  the 
contract  is  made,  or  is  to  be  performed,  or  where  the  obligiition 
or  liability  arises,  or  the  breach  occurs,  or  in  the  county  whore 
the  principal  place  of  business  is  situated,  subject  to  the  power 
of  the  court  to  change  the  place  of  trial  as  in  other  cases,  for 
some  other  reason  than  that  of  residence.^'*  A  corporation  or- 
ganized under  the  laws  of  Oregon  must  be  such  in  the  county 
where  it  has  its  principal  office  or  place  of  business,  or  in  the 
county  where  the  cause  of  action  arose.  The  residence  of  a  cor- 
poration is  deemed  to  be  in  the  county  where  it  has  its  principal 
office  or  place  of  business.^^     Action  for  divorce  by  a  wife  liv- 

Co,  v.  Sweetlaud,  14  Abb.  Pr.  240.  A  foreign  corporation  doing 
business  in  California  has  no  residence  within  that  state,  and  an 
action  against  it  may  be  tried  in  any  county  designated  bj'  tlie 
plaintiff  in  his  complaint.  Thomas  v.  Placerville,  etc.,  Min.  Co., 
65  Cal.  600.  As  to  the  residence  of  railroad  coiiwrations,  see  Ver- 
mont R.  R.  Co.  V.  Northern  R.  R.  Co.,  6  How.  Pr.  106;  Sherwood 
V.  Saratoga  R.  R.  Co.,  15  Barb.  050;  Belden,  v.  New  York  &  Harlem 
R.  R.  Co.,  15  How.  Pr.  17;  People  v.  Pierce,  31  Barb.  138;  Couroe 
V.  Nat.  Pro.  Ins.  Co.,  10  How.  Pr.  403;  Hubbard  v.  Nat.  Pro.  Ins. 
Co.,  11  id.  149;  see,  however,  Pond  v.  Hudson  River  R.  R.  Co.,  17 
Id.  rA3. 

33  Fresno  Nat.  Bank  v.  Superior  Court,  S3  Cal.  491;  and  see  GrifBn 
and  Skelly  Co.  v.  Cannery  Co.,  107  id.  378;  Brady  v.  The  Times- 
Mirror  Co.,  106  id.  56.  Venue  of  action  against  a  corporation  for  an 
accounting.  McSheny  v.  Pennsylvania,  etc.,  Min.  Co.,  97  id.  6.37; 
for  the  publication  of  a  libel  against  the  plaintiff.  Brady  v.  The 
Times-Mirror  Co.,  106  id.  S56;  for  false  imprisonment,  79  id.  30. 

34  Trezevant  v.  Strong  Co.,  102  Cal.  47;  and  see  I>akeshore  C.  Co. 
V.  Modoc,  etc.,  Co.,  108  id.  261.  The  section  relates  exclusively  to 
private  corporations,  and  has  nO'  application  to  a  suit  against  a 
public  municipal  coiporation.  Buck  v.  Eureka,  97  Cal.  135.  But 
an  association  of  persons  organized  for  a  particular  purpose,  al- 
though not  formally  a  corporation,  may,  under  this  section,  be 
sued  for  negligence  in  the  county  where  its  liability  arose. 
Kendrick  v.  Diamond  Creek,  etc.,  Min.  Co.,  94  Cal.  137. 

35  Holgate   V.   Oregon,  etc.,   R.   R.   Co.,  16  Oreg,   123.     Venue  of 


45  PLACE    OF   TRIAL.  §  55 

ing  apart  from  her  husband  may  be  brought  against  him  in  the 
county  where  she  resides.^*^  But  a  defendant  in  an  action  for 
divorce  has  the  right  to  a  change  of  place  of  trial  to  the  county 
in  which  he  resides,  upon  a  proper  demand  therefor.^^ 

Actions  to  recover  damages  for  injuries  to  the  person  should 
be  brought  under  this  section/^  and  also  actions  for  creating  a 
private  nuisance,  the  same  being  an  action  for  an  injury  to  the 
person.'^^  An  action  against  a  railroad  corporation  to  recover 
damages  for  injuries  sustained  may  be  tried  in  the  county  where 
the  injury  was  inflicted,  and  the  defendant  corporation  has  no 
right  to  have  the  place  of  trial  changed  to  the  county  where  it 
has  its  principal  place  of  business.^"  In  quo  zuarranto,  the 
people  being  a  party,  their  residence  extends  to  every  county.^^ 
In  proceedings  for  a  mandamus  to  compel  the  execution  of  a 
sheriff's  deed  to  a  redemptioner,  the  action  may  be  commenced 
in  the  county  where  the  relator  resides.^^  The  writ  of  habeas 
corpus,  however,  should  not  issue  to  run  out  of  the  county,  un- 
less for  a  good  cause  shown.*^  If  real  and  personal  actions  are 
joined  in  the  same  complaint,  the  case  falls  within  section  395 
of  California  Code  of  Civil  Procedure,  and  must  be  tried  in  the 
county  of  the  plaintiff's  residence.^* 

action  apainst  a  corporation  uniler  statutes  of  Colorado.  See  Den- 
ver, etc.,  Construction  Co.  v.  Stout,  8  CoL  01;  under  Washingrton. 
Code  of  Procedure,  §  IGO;  see  McMaster  v.  Thresher  Co.,  10  Wash. 
St.  147. 

36  Harteau  v.  Harteau,  14  Tick.  181;  Jenney  v.  Jenney,  14  Mass. 
2.31:  2  id.  l.">8,  1.56;  3  id.  184;  2  Cow.  &  H.  Notes,  879;  "J  Greenl.  147; 
Vence  v.  V-J'nce.  15  How.  I'r.  497;  id.  57G;  and  see  Cal.  Civil  Code, 
§  128. 

37  Warner  v.  A\'arni'r,  Kio  Cal.  11. 
ssMcIvor  V.  McCalje,  Ki  Abb.  Vv.  319. 
80  Kay  V.  Sellers,  1   Duvall  (Ky.),  2.'')4. 

40  Lewis  V.  Soutli  Pac.  Coast  It.  K.  Co.,  (!(J  Cal.  209. 

41  People  V.  Cook,  fi  How.  Pr.  448. 

42  McMillan  v.  Kichards,  9  Cal.  420. 

*^  Ex  parte  VAWs,  11  Cal.  225.  In  New  York,  where  the  parties 
reside  In  different  cotintics  the  suit  shall  be  comniencod  in  the 
county  wIhto  tlie  prinriiial  transaction  occurred,  or  where  it  ap- 
pears the  larjrcst  nuiiil>er  of  witnesses  r(*side.  Jordan  v.  Carrison, 
6  How.  Pr.  tl;  see  Forcliand  v.  Collins.  1  Hun,  31(!.  "Transaction," 
wlicn  relatinp  to  a  ••ontract.  includes  flie  wliolc  j)roccedinj,',  lu'^rin- 
ninjr  witli  tlie  nepotlntlon.  and  cmlinir  with  fin-  iMrfonnauce. 
Robinson  v.  Flint,  7  Abb.  Pr.  393,  note 

44  Smith  v.  Smith,  88  Cal.  572;  Warner  v.  Warner,  100  id.  11. 


^  r>5:l  GENEUAL    I'KINCIPLES.  46 

§  55a.  Venue  —  powei-  of  court  to  change.  The  power  of 
courts  to  grant  changos  t)f  venue  is  limited  to  the  exercise  of  a 
judicial  discretion,  on  good  cause  shown. '^^  Such  change  may 
be  applied  for  on  the  ground  that  the  action  has  not  been 
brought  in  the  proper  county,  considering  the  location  of  the 
subject  of  the  action,  or  it  nuiy  be  applied  for  on  the  ground 
that  the  ends  of  justice,  or  the  convenience  of  parties  and  their 
witnesses,  will  be  better  subserved  by  the  change.  But  in  any 
case,  before  it  is  incumbent  upon  the  court  to  nuike  the  change, 
good  cause  must  be  shown  by  the  party  applying  therefor,  and 
this  remedy  is  a  privilege  which  may  be  waived,  as  by  failing 
to  appear."*®  A  motion  for  change  of  venue  on  the  ground  of 
the  convenience  of  witnesses,  and  because  a  fair  and  impartial 
trial  can  not  be  had  in  the  county  in  which  the  action  is 
brought,  is  held  to  be  addressed  to  the  sound  discretion  of  the 
court,  and  that  its  action  thereon  will  not  be  disturbed  on  ap- 
peal, unless  it  appears  that  this  discretion  has  been  abused,  or 
injustice  has  been  done.'*'^  Bnt  where  an  action  involving  real 
estate  is  brought  in  the  wrong  county,  there  is  no  discretion  in 
the  court,  and  the  change  of  venue  is  a  matter  of  right,  which 
may,  however,  be  waived.^^  So  where  the  action  is  one  which 
the  defendant  is  entitled  to  have  tried  in  the  county  of  his  resi- 
dence, if  proper  application  for  the  change  is  made,  it  is  the 
duty  of  the  court  to  grant  it,  and  the  court  has  no  discretion  to 
refuse  to  hear  the  application,  or  to  impose  terms  as  a  con- 
dition precedent  to  the  hearing.^^  The  right  to  a  change  of 
venue  is  to  be  determined  by  the  condition  of  things  existing 
at  the  time  the  parties  claiming  it  first  appeared  in  the  action.^" 

45  Kennon  v.  Gilmer,  .5  Mont.  2.">7;  51  Am.  Hep.  45. 

46  Fletcher  v.  Stowell,  17  Col.  94.  The  statute  providing  for  a 
change  of  venue  Is  only  mandatory  upon  the  court  where  the  party 
applying  has  brought  himself  witliiu  the  provisions.  Roberts  v. 
People,  9  Col.  458. 

47  Avila  V.  Moherin,  (18  Cal.  478;  and  see  De  Wein  v.  Osborn.  12 
Col.  407;  State  v.  Superior  Court,  9  Wash.  St.  G73. 

48  Smith  V.  People,  2  Col.  App.  99. 

49  Hennessy  v.  Nicol,  105  Cal.  139.  The  Utah  statute  (2  Comp. 
Laws,  18S8,  §  3199),  authorizes  the  court  to  change  the  place  of 
trial  to  the  nearest  court  when  the  parties  do  not  agree  on  the 
court  to  which  the  change  shall  l>e  made.  See  Ex  parte  Whitmore, 
9  Utah,  441;  Elliot  v.  Wliitmore,  10  id.  24G. 

50  Ah  Fong  V.  Sternos,  79  Cal.  .?3;  Hennessy  v.  Xicol,  105  id.  138; 
Wallace  v.  Owsley,  11  Mont.  221.  The  provisions  of  the  Nevada 
Practice  Act  governing  the  subject  of  change  of  place  of  trial  has 


4:7  PLACE    OF   TRIAL.  §§  56,  57 

§  56.  Venue  —  application  for  change  of.  After  service  of 
summons  aud  copy  of  complaint,  the  attorney  for  defendant 
should  make  inquiry  by  examining  the  complaint  as  to  whether 
the  action  is  brought  in  the  proper  county,  and  if  it  is  not,  and 
a  change  of  A'enue  is  desired,  the  first  thing  to  be  done  is  to 
move  the  court  for  a  change  of  the  place  of  trial.  This  may  be 
done  upon  affidavit  of  merits  and  notice  to  the  plaintitf.  In 
California,  the  notice  to  be  given  as  to  time  is,  five  days  before 
the  time  appointed  for  the  hearing,  when  the  court  is  held 
in  the  same  district  with  both  parties;  otherwise,  ten  days,  un- 
less the  notice  is  served  by  mail.^^ 

§  57.  The  cause.  If  the  county  in  which  the  action  be  com- 
menced is  not  the  proper  county  for  the  trial  thereof,  the  de- 
fendant has  a  statutory  right  to  have  the  same  transferred  to 
such  county.''^  It  may,  however,  be  tried  in  the  county  in 
which  the  action  is  brought,  unless  the  defendant,  at  the  time 
he  appears  and  answers  or  demurs,  files  an  affidavit  of  merits, 
and  demands,  in  ^^o-iting,  that  the  trial  be  had  in  the  proper 
county.'^^  Besides  the  right  of  the  defendant  to  a  change  of 
venue  because  the  county  designated  in  the  complaint  is  not 
the  proper  county,  the  court  may  also,  on  motion,  change  the 
place  of  trial  when  there  is  reason  to  believe  tliat  an  impartial 
trial  can  not  be  had  therein;  when  the  convenience  of  witnesses 
and  the  ends  of  justice  would  be  promoted  by  the  change;  and 
wlien  from  any  cause  the  Judge  is  disqualified  from  acting.^^ 
If  the  defendant  desires  a  change  of  the  place  of  trial,  on  the 
ground  that  the  county  designated  in  the  complaint  is  not  the 
proper  county,  he  must  demand  a  transfer  at  the  time  he  ap- 
pears by  demurrer  or  answer.^''  If  his  motion  to  change  the 
place  of  trial  is  brought  to  a  hearing  before  he  has  answered, 
the  plaintiff  can  not,  1)V  a  cross-motion,  demand  tlio  retention  of 

no  applifatlon  to  actions  for  (lie  recove\-y  of  (leliiuiucut  taxes. 
State  V.  Sliaw,  21  Nov.  222. 

51  T'al.  Code  Civ.  Pro.,  8  lOO.'h  As  to  whifh  is  the  propor  county, 
sf'o  Cnl.  Code  Clv.  Pro.,  8§  .'M)2-.^0.->,  .11)8,  aineudiuent  of  1897. 

M  iieniK'Ssj'  V.  Mfol.  lof.  Cal.  1?,'.);  Wasson  v.  IlolTiuaii.  4  Col. 
A  pp.  491. 

»3Cal.  Code  f'iv.   Pro..   §  .^90. 

•'-■»  Id..  8  .'^97;  Idalio.  8  21:  Arizona,  §  21;  X.  Y.  Code  Civ.  Pro.,  §  987. 
The  f'orirt  lias  no  antliorlly  to  flianne  the  venuo  of  rivll  rases 
oxof'pt  as  jirovlded  by  the  OreK*>n  statute  (TIlU's  Code,  §  388).  Bank 
of  Ofdfn  V.  D.'ivldson,  IS  Orefj.  .HS. 

w  Pennle  v.  \'islier.  91  Cnl.  ?,2P,;  and  soe  Dennison  v.  Cliaptnan, 
102  Id.  018. 


§g  58,  59  GENERAL   PRINCIPLES.  48 

the  action  iu  the  county  whore  it  is  pending,  on  the  ground  of 
convenience,  etc/'"  It  is  only  in  eases  where  the  change  is 
asked  because  the  county  designated  in  the  comphiint  is  not 
the  proper  county  that  the  motion  for  tlie  change  must  pre- 
cede or  accompany  the  answer  or  demurrer.  The  motion  may 
be  made  by  the  defendant,  on  any  other  statutory  ground,  with- 
out the  allidavit  and  denuind,  within  a  reasonable  time  after  his 
appearance.  Snch  motions,  however,  being  dilatory,  must  be 
prosecuted  with  diligence.'^^ 

§  58.  The  saroe  —  the  plaintiff  in  an  action  may  have  the 
place  of  trial  changed  upon  a  proper  showing,  and  upon  a 
proper  showing  it  is  error  in  the  court  to  refuse.^**  Where, 
however,  there  are  conflicting  grounds,  or  if  the  motion  be  made 
on  the  ground  of  the  convenience  of  witnesses,  and  there  are 
conflicting  affidavits,  the  court  may  exercise  its  discretion,  and 
its  ruling  w^ill  not  be  disturbed  except  in  cases  where  this  dis- 
cretion has  been  abused.^^  The  mere  preponderance  of  wit- 
nesses on  one  side  is  not  necessarily  decisive  of  the  motion.*"*^ 
Nor  is  the  court  bound  of  its  own  motion  to  change  the  venue. 
The  right  to  a  change  is  a  mere  privilege  which  may  be 
Avaived.^^ 

§  59.  Demand  for  change. 

Fonn  No.   i. 
[Title.] 
I  hereby  demand  that  the  place  of  trial  of  this  cause  be 

changed  to  the  proper  connty,  viz.,  the  county  of 

[Date.]  [Signature.] 

[Address.] 

se.Tooms  v.  Randall.  3  Cal.  438;  Reyes  v.  Snnford,  5  id.  117; 
Pearkes  v.  Freer,  9  id.  CA2;  .Tones  v.  Frost.  28  id.  246;  Mahe  v. 
Reynolds,  38  id.  500;  Cook  v.  Tendersast,  61  id.  72;  Heald  v.  Hendy, 
65  id.  321. 

57  Cook  V.  Pendergast,  01  Cal.  72-78.  Under  the  statute  an  ap- 
plication for  a  change  of  venue  must  be  made  at  the  earliest 
moment.     Roberts  v.  People,  9  Col.  458. 

58Grewell  v.  Walden,  23  Cal.  108,  109. 

59  Territory  v.  Kinney,  1  West  Coast  Rep.  801 ;  Territory  v.  Lopez, 
id.  821;  §  73,  post. 

eOHanchett  v.  Finch,  47  Cal.  192;  Cook  v.  Pendergast,  61  id.  72. 

61  Watts  V.  White,  13  Cal.  324;  Pearkes  v.  Freer,  9  id.  642;  and 
see  Hearne  v.  De  Young,  111  id.  373.  It  may  be  remarked  that, 
as  this  proceeding  is  entirely  statutory,  and  the  former  practice 
in  NeAv  York  differed  quite  materially  from  that  in  California,  the 


I 


49  PLACE    OF    TRIAL.  §  60 

In  Xew  York,  to  procure  a  change  of  the  place  of  trial,  in 
case  the  county  named  is  not  the  proper  county,  a  demand  is 
first  necessary,  the  service  of  which  is  an  essential  prerequisite 
to  the  motion. "^^  And  if  the  plaintilf  fails  to  consent  to  the 
demand,  application  must  be  made  to  the  court.^^  A  demand 
is  now  necessary  also  in  California,  where  the  ground  of  removal 
is  that  the  action  is  not  brought  in  the  proper  county.^  The 
object  of  the  demand  in  California,  however,  is  not  very  appar- 
ent, since  there  is  no  provision  for  removal  by  consent  as  under 
sections  985  and  986  of  the  Xew  York  Code;  nor  is  there  any 
provision  for  any  action  by  the  court  upon  the  demand,  nor 
does  the  demand  do  away  witli  the  necessity  for  notice  of  the 
motion  to  change,  and  the  only  provision  authorizing  the  re- 
moval is  in  California  Code  of  Civil  Procedure,  section  397. 
"  The  court  may  on  motion  change  the  place  of  trial,"  etc.  It 
has  been  held  by  some  of  the  District  Courts  that  service  of 
notice  of  motion  to  change  the  place  of  trial  is  a  sufficient  de- 
mand. But  it  is  now  determined  that  a  notice  of  motion  to 
change  the  place  of  trial  is  not  a  demand.  A  demand  in  writ- 
ing for  such  change  is  essential  to  the  validity  of  an  order 
changing  the  place  of  trial.^ 

§  60.  Statement  in  demand.  In  the  demand  the  name  of 
the  proper  county  to  which  a  removal  is  sought  must  be  in- 
serted.^" And  service  must  be  made  on  the  opposite  counsel 
before  the  time  for  answering  expires."'^  But  it  may  be  made 
simultaneously  with  the  service  of  the  answer.^  But  not  after, 
although  defendant  answered  before  his  time  had  cxpired.^^ 
Either  party  may  move  when  an  impartial  trial  could  not  be 
bar],  or  when  convenience  of  witnesses  would  be  promoted.'^*' 

dfrlslons  In  Now  York  have  penorally  but  little  application  under 
the  California  practice. 

«2N.  Y.  Twle  Civ.  rro.,  §  980;  Vermont  Central  R.  R.  Co.  v. 
Northern  H.  U.  Co..  G  How.  Pr.  100;  Van  Dyck  v.  McQuade,  18 
Ilun,  'Mr,. 

ns  N.  Y.  Cmle  Civ.  I'ro..  «  nSO;  Clark  v.  Canipboll,  .^.4  ITow.  Pr. 
100;  Marfh  v.  Lowry.  10  How.  Pr.  41;  20  Barb.  197;  Ilouck  v. 
I.asher,  17  Ifow.  IV.  .'".20. 

'"'^.Uilc.  nnd  f'.-il.  Code  Civ.  Pro..  5  .I'lO. 

«•'•  Ityrne  v.  Hyriio.  .'.7  Cal.  :'.4K;  Warner  v.  Warner.  100  id.  11,  17; 
Pennio  v.  Vlshcr.  fM  id.  .320;  lOlaiii  v.  Crlffln,  19  Nev.  442. 

"fi  P.pardfihy   v.    I»l«kerson,  4  How.  Pr.  81. 

"7  :\t)iiijrati  V.  I'.rophy,  2  Code  15.  118. 

""Mairs  V.   Ifctuwn,  .'{  Code  It.  1,38. 

«»Mlllijran  v.  lirophy.  2  Code  H.  118. 

TOHlnrhiMjiD  V.  ruitler,  7  How.  Pr.  4G2. 
Vf,i     r_7 


^  61  GENERAL    PRINCIPLES.  50 

A  (lomand  specifying  an  ini])i()i)i'r  county  is  irregularJ^  On 
a  doniancl  there  must  be  an  order  or  consent;  mere  service  of 
dcniaiul  is  not  sufficient."^"  Jn  a  denianil  to  change  the  place  of 
trial  to  tlie  proper  county,  any  suggestion  as  to  which  is  the 
proper  county  is  surplusage.""'  UndiM-  the  })resent  New  York 
Code  the  demand  must  specify  the  county  where  the  defendant 
requires  the  action  to  be  tried. '^■*  And  svich  would  seem  the 
better  practice  in  California.  A  denumd  for  change  of  venue 
is  not  insufficient  because  the  attorneys  of  the  defendant,  de- 
scribing themselves  as  such,  say  that  they  demand,  instead  of 
saying  that  the  defendant  demands,  the  cliange.'^^  The  de- 
mand for  change  may  be  signed  by  an  attorney  simultaneously 
with  his  appearance."^*^ 

§  61.  Form  of  notice. 

Form  No.  2. 
[Title.] 
To  ,  Attorney  for  Plaintiff: 

You  will  please  take  notice  that  the  defendant  will  move  this 

court,  at  the  courtroom  thereof, ,  on  the 

day  of ,  18.  .,  at  ten  o'clock  a.  m.,  of  said  day,  or 

as  soon  thereafter  as  counsel  can  be  heard,  for  an  order  chang- 
ing the  place  of  trial  of  this  action  to  the  Superior  Court  in  and 

for  the  county  of    Said  motion  will  be  made 

upon  affidavits,  copies  of  which  are  herewith  served  upon  you, 
and  upon  the  demand  to  change  the  place  of  trial,  and  the 
papers  on  file  in  the  case,  upon  the  following  grounds: 

I.  That   the   property   in    controversy    is    situated    in    said 
county. 

II.  That     the     defendants     are     both     residents     of     said 
county. 

III.  That  this  :1s  an  action  against  defendant 

for  an  act  done  by  him  in  virtue  of  his  office,  said  defendant 
being  sheriff  of    county. 

[Date.] 

A.  B., 
Defendants'  Attorney.'^'^ 

71  Beardsley  v.  Dickerson,  4  How.  Pr.  81. 
72Hasbroiuk  v.  M'Adam.  4  How.  Pr.  .•542;  3  Code  R.  39. 
Tsphilbrick  v.  Boyd,  If.  Abb.  Pr.  393. 

74  N.  Y.  C<Kle  Civ.  Pro.,  §  986. 

75  Buck  V.  Eureka.  97  Cal.  13.5. 

76  People  V.  Larne,  66  Cal.  235. 

77  The  applicant  may  pive  otlier  slatutory  reasons,  according  to 
the  facts  in  each  particular  case. 


51  PLACE   OF  TRIAL.  §§  62,  62a 

§  62.  Joinder  of  defendants.  The  rule  is  well  settled  that 
all  of  the  defendants  must  join  in  the  application  for  a  change 
of  venue,  or  a  good  reason  shown  why  they  do  not;  otherwise 
it  will  he  denied.'^'^  The  motion  may  be  made  by  one  of  several 
defendants"^  on  notice  to  the  other  defendants,  unless  they  be 
in  default;  or  a  defendant  subsequently  served,  after  a  similar 
motion  by  another  defendant  has  been  denied,  may  move  for  a 
change  of  place  of  trial.*^^  This,  however,  seems  questionable, 
and  can  not  be  done  where  part  of  the  defendants  live  in  the 
county  where  the  action  is  brought,  if  the  motion  is  made  on 
the  ground  that  the  action  is  not  brougnt  where  defendants 
reside.®^  In  an  action  to  determine  rights  to  real  estate  against 
several  parties,  the  defendant  is  entitled  as  a  matter  of  right  to 
have  the  action  tried  in  the  county  in  which  the  real  estate  is 
situated,  and  all  the  defendants  need  not  Join  in  claiming  such 
rights.^^  So,  if  several  defendants  are  sued  as  sureties  on  a 
bond,  an  affidavit  of  merits  in  support  of  a  motion  for  a  change 
of  the  place  of  trial  need  not  be  made  by  more  than  one  of 
them.®^  And  an  application  for  a  change  of  venue'  to  the 
property  county,  made  by  all  the  defendants  who  had  been 
served  at  the  time,  can  not  be  adversely  affected  by  the  fact 
that  before  its  determination  another  defendant  has  been  served, 
but  has  failed  to  join  in  the  application.^* 

§  62a.  Venue  —  change  of  to  county  of  defendant's  residence. 
A   defendant   has  the   right  to  have   the   action   tried    in   the 

78  Sailly  v.  Ilutton,  6  Wend.  .^08;  Legg  v.  Dorsheim.  19  id.  700; 
Welling  v.  Sweet,  1  How.  Pr.  XryC,;  Simmons  v.  McDougall,  2  id. 
77;  Pieper  v.  Centinela  Land  Co.,  .50  Tal.  173;  McKenzie  v.  Barling, 
101  id.  459. 

70  Mairs  v.  Kemson,  ^  fVxle  R.  138;  Bergman  v.  Xoble,  10  Civ. 
Pro.  K.  190;  M«-Slierr>-  v.  I'cnna..  etc.,  Min.  Co.,  97  Cal.  037;  and 
see  Bafhman  v.  Cathrj-,  113  Id.  498;  .Tob  v.  Butterfield,  1  Eng.  Law 
&  Eq.  417. 

f'ON.  J.  Zinc  Co.  v.  Blood.  8  Abb.  Pr.  147. 

«i  See  Cal.  Code  Civ.  I'ro.,  §  39.5. 

»<2  0'Nell  V.  O'Neil,  .54  Cal.  187;  and  see  Warner  v.  Warner,  100 
Id.  16. 

**3  Peojilc  V.  Larne.  OH  Cal.  2.''..5;  and  seo  Rowland  v.  Coyne.  5.5  Id. 
1.  An  alTldavIt  of  merits  may  proijcrly  be  made  by  one  of  two  or 
more  cfulefpndants  for  tJie  bout-fit  of  all.  Palmer  v.  Barclay,  92 
Cal.  i;i!i. 

84  State  V.  Superior  Court,  9  Wash.  St.  G6S. 


§  G2a  GENERAL   PRINCIPLES.  52 

county  of  his  rosidence,  oxce})l  wIhtc  it  is  otherwise  provided 
by  statutory  enactments.  And  a  couit  lias  no  jurisdiction  to 
try  an  action  against  a  defendant  who  is  not  a  resident  of  the 
county  and  luis  not  been  served  witli  process  therein,  if  the 
defendant,  at  tlic  time  he  appears  and  demurs  or  answers,  (iios 
an  ailidavit  of  merits  and  demands  that  the  trial  be  had  in  the 
proper  county.'^'*  The  right  of  the  defendant  to  have  the  venue 
clumged  to  the  county  of  his  residence  is  not  atfeeted  by  the 
joinder  of  another  defendant  who  is  not  a  necessary  party,  and 
against  whom  no  cause  of  action  is  stated.*^  So  where  the  com- 
plaint contains  two  causes  of  action  in  tort,  and  in  the  first 
cause  of  action  the  county  in  which  the  tort  was  committed  is 
stated,  but  in  the  second  it  is  not,  a  change  of  venue  is  prop- 
erly granted  to  the  county  of  the  defendant's  residence  upon 
the  second  cause  of  action,  and  the  defendant's  right  to  such 
change  can  not  be  abridged  by  reason  of  the  first  cause  of  ac- 
tion being  properly  triable  in  the  county  where  the  action  was 
commenced.*''^  The  venue  of  an  action  for  damages,  com- 
menced in  a  county  in  which  none  of  the  defendants  reside, 
will  be  changed  to  the  proper  county  on  the  application  of  the 
defendants  who  have  been  served  with  process.^*  But  if  one  of 
the  defendants.resides  in  the  county  in  which  the  action  is  com- 
menced, it  may  properly  be  tried  there,  and  an  order  refusiug 
to  change  the  venue  to  the  county  in  which  other  of  the  de- 
fendants reside  will  not  be  disturbed.^^  At  least,  a  motion  to 
change  the  venue  to  a  county  in  which  other  of  the  defendants 
reside  will  not  be  granted,  unless  all  of  the  defendants  join  in 
the  motion,  or  unless  good  reason  is  shown  why  they  have  not 
so  joined.^*'  Under  section  Ifi,  article  13  of  the  Constitution 
of  California,  in  an  action  against  a  corporation  to  recover  dam- 
ages for  the  breach  of  a  contract,  the  defendant  is  entitled  to  a 
change  of  venue  to  the  county  in  which  its  principal  place  of 
business  is  situated,  when  the  county  in  which  the  action  was 

f^  State  V.  Suporior  Court.  r>  Wash.  St.  .518;  and,  to  same  efifect, 
see  Kennedy  v.  Derrickson,  id.  289;  Watkins  v.  Degener,  63  Cal. 
500. 

sfi  Savward  v.  Houghton,  82  Cal.  628;  State  v.  Superior  Court, 
7  Wash.  St.  .W6. 

«7  Yore  V.  Murphy,  10  Mont.  .304;  also,  Ah  Fong  v.  Sternes,  79 
Cal.  .30. 

88  Rathgeb  v.  Tiscornia,  66  Cal.  96. 

89  TTirpchfeld  v.  Sevior,  77  Cal.  448. 

00  McKenzie  v.  Barling,   101  Cal.  459. 


53  PLACE    OF   TRIAL.  §  63 

brought  is  not  the  one  in  which  the  contract  was  made  or  was 
to  be  performed,  or  in  which  the  obligation  or  liability  arose  or 
the  breach  occurred,  or  in  which  the  principal  place  of  business 
of  the  corporation  is  situated.^^  But  where  a  corporation  is 
sued  in  any  one  of  the  counties  mentioned  in  this  section  of 
the  Constitution,  it  can  not  demand  a  change  of  venue  as  mat- 
ter of  absolute  right,  but  only  as  in  other  cases  and  for  other 
reasons  than  that  the  county  in  which  the  action  is  commenced 
is  not  the  proper  county/^-  One  who  is  involuntarily  substi- 
tuted as  the  sole  defendant  in  an  action  (Cal.  Code  Civ.  Pro., 
§  386),  is  entitled  to  a  change  of  venue  to  the  county  in  which 
he  resides,  notwithstanding  the  failure  of  the  original  defend- 
ant to  demand  such  a  change.^^ 

§  63.  Statement  of  ground  —  not  the  proper  county  from  situa- 
tion of  subject-matter. 

Form  No.  3. 

[Substitute  in  preceding  form.] 

That  this  is  an  action  for  the  recovery  of  real  property  [or  of 
an  estate,  or  interest  therein,  or  for  the  determination  in  some 
form  of  such  right  or  interest,  or  for  injuries  to  real  property], 
and  that  the  said  real  property  is  wholly  situate  in  the  said 
last-named  county  (Cal.  Code  Civ.  Pro.,  §  392,  subd.  1). 

[Or  that  ihis  is  an  action  for  the  partition  of  real  lu'operty, 
which  saia  property  is  wholly  situate  in  the  said  county  to  which 
the  desired  change  is  asked  (Cal.  Code  Civ.  Pro.,  §  392,  subd.  2). 

I  Or,  that  this  is  an  action  for  the  foreclosure  of  a  mortgage 
of  [or  lien  upon]  real  property,  and  that  the  land  in  said  mort- 
gage [or  lien]  described  is  wholly  situate  in  said  last-named 
county]  (Cal.  Code  Civ.  Pro.,  §  392,  subd.  3)."-* 

91  Soe  C'ohi)  v.  Central  racific  K.  \l.  Co.,  71  Cal.  4SS;  Byrum  v. 
Stockton,  f'lf.,  AuT.  \\<>iks.  !»1  id.  <;.">7. 

02  National  liank  v.  Superior  Court.  S3  Cal.  498;  Trozovant  v. 
StroiiK  Co.,  102  id.  47;  and  see  Lewis  v.  Sonlliern  rncifio,  etc.,  R.  R. 
Co.,  <:n  id.  2(ilt;  Gels  v.  Helena,  etc,  R.  R.  Co.,  10  Mont.  .''>24.  actions 
apcainst  corporations  to  recover  daniaRes  for  personal   injuries. 

•••■)  Howell  V.  Stetefeldt  Furnace  Co.,  (K)  Cal.  1.")."^. 

e*  MlnluK  claims  are  real  estate  within  the  meauini:  of  tliis  act, 
and  are  troverned  by  the  provision.s  of  this  se<tion.  Wliore  a  suit 
for  real  estate  is  brou^lit  in  the  wronjr  county,  a  motion  to  clianpc 
the  venue,  and  nc»t  a  deniuirer.  is  tlie  jtroper  remedy.  .\nd  in  such 
cane  fliere  is  Ufi  discretion  in  the  court,  the  chanire  bcin^  a  matter 
of  riirht.  A\':itt<  v.  A\'liitc.  V.\  Cal.  .".-'I.  It  is  incumbent  upon  the 
court   to   transfer   the   cause  to   the   proper   county    upon   a   mere 


§§(■.4-0(5  (iKN'KKAI,    I'UIN'CirLKS.  54 

§  64.  The  some  —  not  the  county  where  cause  of  action  arose. 
lynn  No.  4. 

[Substitute  in  Form  No.  2. J 

Tlmt  this  is  an  action  for  the  recovery  of  a  penalty  or  for- 
feiture imposed  by  statute,  except,  etc.  (see  Gal.  Code  Civ.  Pro., 
§  303,  subd.  1);  and  that  it  arose  in  the  said  hist-named  county. 

Or,  that  this  is  an  action  against  defendant  for  an  act  done 

by  him  in  virtue  of  his  office,  said  defendant  being  the 

of  said  last-named  county,  and  a  resident  thereof 

(Cal.  Code  Civ.  Pro.,  §  393,  subd.  2);  [or  when  the  act  com- 
plained of  was  done  by,  and  suit  was  brought  against  a  person 
who,  by  commaaid  of  such  officer,  or  in  his  aid,  performed  the 
act  which  is  the  subject  of  the  action,  addj  and  that  such  per- 
son is  a  resident  of  the  last-named  county,  etc.^^ 

§  65.  Affidavit  on  the  ground  of  nonresidence. 
For»i  No.  5. 
[Title.] 
[Vexue.] 
A.  B.,  the  defendant  in  the  above-entitled  action,  being  duly 
sworn,  deposes  and  says  as  follows: 

I.  The  summons  and  complaint  in  this  action  were  served  on 
me  on  the day  of ,  18 .  . . 

II.  I  further  say,  that  I  have  fully  and  fairly  stated  the  case 

in  this  cause  to  G.  H.,  my  counsel,  who  resides  at  No , 

in street,  in  the  city  of ,  and  after 

such  statement  I  am  by  him  advised  and  verily  believe  that  I 
have  a  good  and  siibstantial  defense  on  the  merits  to  the  action. 

III.  All  the  parties  defendant  to  this  action  reside  in  the 
county  of ,  in  this  state. 

[Jurat.]  [Signature.] 

§  66.  The  same  —  affidavit  of  merits.  An  affidavit  of  merits, 
which  declares  "  that  the  defendant  has  fully  and  fairly  stated 
the  case  to  his  counsel,  and  that  he  has  a  good  and  substantial 
defense  on  the  merits  to  the  whole  of  tlie  plaintiff's  demand, 
as  he  is  advised  l)y  his  counsel,  and  verily  believes  to  be  true," 

R\i(r?fiStion,  and  no  affidavit  of  nieiits  is  ner-essai-y.  Fi'itts  v.  Cnrap, 
94  Cal.  393.  Courts  outside  of  the  comity  in  which  the  land  is 
situated  have  no  .I'uiisdiclion.    TTrton  v.  Woolscy.  ST  Cal.  .38. 

^^>\t  is  not  expected  that  each  form  siven  will  exactly  fit  ench 
cnsp.  as  it  arises  in  the  practice  — but  the  general  form  is  deemed 
correct. 


55  PLACE    OF   TRIAL.  §  67 

is  sufficient.^^  The  affidavit  of  merits  must  be  made  and  served 
Avith  notice  of  motion. ^^  It  is  a  common  and  convenient  prac- 
tice  to  combine  the  affidavit  of  merits  with  the  affidavit  of  the 
ground  on  which  the  motion  is  made,  where  the  latter  does  not 
appear  upon  the  face  of  the  complaint,  and  has  to  be  established 
by  affidavit.  It  has  been  held  that  where  it  appears  from  the 
affidavit  of  merits,  that  the  defendant  is  entitled  to  file  an  an- 
swer which  will  raise  issues  for  trial  which  he  desires  to  have 
tried  in  the  proper  county,  the  affidavit  is  sufficient.^*  The  affi- 
davit may  be  made  by  the  attorney  of  the  party  applying  for 
the  change  of  venue,  where  it  shows  sufficient  reason  for  its 
not  being  made  by  the  party  himself.®^ 

§  67.  The  same  —  residence  of  parties.  The  principal  place 
of  business  of  a  corporation  is  its  residence,  within  the  mean- 
ing of  that  term.^"''  A  willful  or  careless  ignorance  of  the  resi- 
dence of  the  defendant  does  not  put  it  in  the  power  of  the 
plaintiff  to  sue  him  in  any  county  of  the  state,  however  remote 

9fi  Butler  V.  Mitchell,  17  Wis,  52;  Watkins  v.  Degener,  (33  Cal.  500; 
Rowland  v.  Coyne,  55  id,  1,  4;  Buell  v.  Dodge,  63  id.  553. 

9"  Lynch  v.  Mosher,  4  How.  Pr.  80.  As  toi  sufficiency  of  affidavit 
of  merits,  consult  Richards  v.  Sweetzer,  1  Code  R.  117;  Ellis  v. 
Jones,  0  How.  I'r.  290;  Rickards  v.  Sweetzer.  3  id.  418:  .Tordan  v. 
Garrison,  0  id.  0;  Mixer  v.  Kuhn.  4  id.  400,  412,  The  affiant  should 
aver  that  he  was  fully  and  fairly  stated  "  the  case,"  not  "  his  case," 
to  his  attorney.  ref)|)k»  v.  Larue,  00  Cal.  235.  But  there  is  no 
os.-;ential  (lifference  l>etween  an  affidavit  of  merits  which  states 
that  tlie  defendant  "  has  fully  and  fairly  stated  the  case  in  this 
a«tlon,"  and  one  which  states  that  he  "  has  fully  and  fairly  statetl 
the  facts  of  the  said  case."  Rathgeb  v.  Tiscornia,  00  Cal.  90.  And 
an  affidavit  of  merits  otherwise  good  is  not  defective  because  of 
failure  to  allege  tliat  flie  .iffiant  believed  the  advice  of  his  counsel. 
Wjitt  v.  Bradley,  !•.">  Cnl.  415.  Xor  is  it  insufficient  because  of  the 
ondssion  of  tiie  names  of  tlie  defen<lan1s  from  tlie  title  of  the 
n<tion,  where  the  notice  of  motion  states  that  tlie  motion  will  be 
made  "  ujion  the  affidavit  and  demand  f)f  deCondant  to  change  the 
place  of  trial  annexed  and  served  witii  said  notice,  and  upon  said 
notice  and  all  the  papers  and  idcadings  on  file  in  said  action."  and 
both  the  notice  and  demand  were  duly  entitled  in  the  action,  and 
tlie  affidavit  was  lile<l  with  the  notice.  I<l.  I'.ut  an  affidavit  of 
merits  averring  mc-rely  that  the  affiant  liad  fully  and  fairly  stated 
to  tlie  attorney  all  the  facts  cf>nstiluling  tlie  defense  of  tlie  de- 
ft ndants.  etc..  inste.'Kl  of  tile  faefs  of  tlie  case,  is  insufficieut.  Pal- 
mer V.  Barclay,  92  ('r\.  199. 

f«  State  V.  Su|»frior  f'ourt,  9  Wash.  St.  608. 

»eNicholl  V.  .Nicholl.  vr,  Cal.  .30. 

100 .Jenkins  v.  California  Stage  Co.,  22  Cal.  537;  see  §  .55,  ante. 


§§68,61)  GHNKKAl-    1M;1N<  ll'l.KS.  56 

from  liis  resilience.  To  ret^ist  the  application  of  the  defendant, 
the  plaintilV  should  have  shown  that  he  used  all  proper  diligence 
to  ascertain  the  residence"  of  the  defendant  before  suit,  and 
failed. ^^^'  'i'lie  motion  to  change  on  the  ground  of  nonresi- 
dence  of  defendant  can  not  be  resisted  on  the  ground  that  the 
convenience  of  witnesses  requires  the  action  to  be  retained 
where  it  is  commenced.  And  if  the  court  refuses  to  grant  the 
change  when  asked  for  on  such  ground,  where  the  motion  is 
made  at  the  time  of  defendant's  demurring  or  appearance,  it 
is  ground  for  reversal  on  appeal. '^^ 

§  68.  Affidavit   on   ground   of   partiality   and   prejudice. 
Form  No.  6. 
[Title.] 

[AVENUE.] 

[Same  as  in  Form  No.  5,  down  to  III.] 

III.  I  have  reason  to  believe  and  do  believe  that  I  can  not 
have  a  fair  and  impartial  trial  in  said  court  in  which  this  action 
is  brought,  by  reason  of  the  interest,  prejudice,  and  bias  of  the 
people  of  said  county  [give  the  facts].  A.  B. 

[JUEAT.] 

§  69.  The  same  —  circumstances  to  be  stated.  It  is  neces- 
sary to  state  in  the  aflidavit  facts  and  circumstances  which 
induce  the  belief  that  an  impartial  trial  can  not  be  had,  in  order 
that  the  court  may  judge  whether  the  belief  is  well  founded; 
the  affidavits  of  individuals  to  their  belief  that  an  impartial 
trial  can  not  be  had  are  insufficient. ^"^^  It  has  been  said  that 
an  actual  experiment  should  be  first  made  by  attempting  to 
impanel  a  jury,  or  by  at  least  one  trial  of  the  cause. ^^'*  But 
this  rule  has  not  been  sustained,  and  other  circumstances  than 
an  actual  trial  are  sometimes  held  sufficient  evidence  that  an 
impartial  trial  can  not  be  had.^''^ 

101  I  ohr  v.  Latham,  15  Cal.  418. 

102  Cook  V.  Pendersast,  61  Cal.  72;  Bailey  v.  Sloan.  1  West  Coast 
Rep.  472;  Ileald  v.  Ilendy,  65  Cal.  ,321;  Williams  v.  Keller,  6  Nev. 
141. 

10^  Bowman  v.  Ely.  2  Wend.  2.50;  People  v.  Bodine,  7  Hill,  147; 
People  V.  Vermilye,  7  Coav.  108,  1.37:  Scott  v.  Gibbs,  2  .Toluis.  Ca«. 
116;  Coi-p.  of  N.  Y.  v.  Dawson,  id.  .3.35;  Sloan  v.  Smith,  3  C«l.  410; 
State  V.  Millain.  3  Nev.  409. 

104  Mossenjrer  v.  Ilolmes,  12  Wend.  203;  People  v.  Wrij^ht,  5  How. 
Pr.  23. 

105  People  V.  Webb,  1  Hill.  170;  People  v.  Lonfr  Island  R.  R.  Co., 
4  Park.  Cr.  W2;  Budge  v.  Xortham,  20  How.  Pr.  248. 


57  PLACE    OF   TRIAL.  §  70 

§  70.  The  same  —  amount  of  partiality  or  prejudice  necessary. 
The  general  seutiments  of  the  community  respecting  the  merits 
of  an  exciting  case  may  be  such  an  obstacle  to  the  administra- 
tion of  Justice  that  a  change  should  be  ordered. ^*^*^  But  the 
court  will  not  grant  a  change  of  venue  on  the  ground  that  the 
prejudices  of  the  people  of  the  county  are  against  turnpike 
roads,  in  an  action  where  such  a  company  is  a  party.^"'^  Nor  is 
it  a  ground  for  a  change  of  venue  that  the  people  of  the  county 
in  which  the  action  is  to  be  tried  are  generally  interested  in  the 
question  involved. ^"^  Nor  in  an  action  against  a  sheriff  will 
the  influence  of  his  office  be  sufficient  reason.^*^^  But  a  change 
of  venue  will  be  ordered  when  it  appears  that  one  hundred 
citizens  united  in  employing  counsel  to  prosecute  the  defend- 
ant."°     But  not  because  a  high  party  spirit  prevails.^^^ 

106  People  V.  Baker,  3  Park.  Cv.  181.  187:  S.  C.  3  Abb.  Pr.  42. 

107  New  Windsor  Ttirni)ike  Co.  v.  Wilson,  3  Cai.  127. 

108  Conley  v.  Chedic,  7  Xev.  336. 
100  Baker  v.   Sleiget.  2  Cai.  46. 

110  People  V.  Lee,  5  Cai.  3.''.3. 

111  Zobieskie  v.  Bander.  1  Cai.  4S7.  In  sfnoral,  jrrantin,!?  or  refus. 
Inp  change  of  venue  on  account  of  the  partiality  or  prejudice  of 
tlie  citizena  of  the  county  is  discretionary  with  the  court,  subject 
to  revision  only  in  ca.ses  of  abuse.  Watson  v.  Whitney,  23  Cai. 
375;  and  see  State  v.  Billings.  77  Iowa,  417:  Power  v.  People,  17 
Col.  17.S;  /„  re  Davis'  Estate,  11  :siont.  1.  Under  a  statute  providing 
that  the  judge  sli.-ill  grant  a  cliange  of  venue  whenever  either 
party  to  a  civil  action  sliail  lih'  an  afhdavit  tliat  t\w  opposite  party 
has  an  undue  influence  over  tlie  citizens  of  the  county,  or  that  an 
odium  attaclies  to  tlie  apiilicant  or  to  his  cause  of  defense,  if  an 
affidavit  i.s  filed  setting  up  the  existc^nce  of  such  prejudicial  fact  in 
tie  Words  of  the  statnte  the  court  has  no  discretion  to  refuse  a 
change  of  venue.  I'erkins  v.  McDowell,  3  Wyo.  203.  The  existence 
of  local  i»rejudice  is  of  no  consequence,  where  the  cause  is  a  chan- 
cery cause.  1ri:il)le  to  the  court.  In  such  case  if  the  trial  judge 
Bhould  ind)ihe  any  of  the  local  feeling,  a  change  of  venue  could  be 
granted,  or  the  judge  of  another  district  be  called  in.  People  v. 
Rogers,  12  Col.  270.  An  application  for  a  change  of  venue  under  the 
Code  of  .New  Mexico,  section  ^S3P,,  will  not  be  granted  on  the 
ground  that  a  fair  trial  c:in  not  lie  had  within  the  county  wliere 
the  action  is  In-ought.  if  fiie  :iflidavit  does  nol  set  forth  facta  suffi- 
cient to  supjiort  tlie  ajipllcatlon.  Thns  where  the  plaintiffs  in  an 
action  of  rejilevln  own  a  mine  from  wlilch  the  ore  In  controversy 
came,  and  the  aiJpllcatlon  is  made  on  the  ground  that  an  organized 
combination  was  co?itinually  stealing  ore  from  tlir'  mine,  it  ougiit 
to  be  Bhown  of  what  persons  tida  combination  was  compoacd,  and 
In  what  manner  they  were  frying  to  InMuonce  the  action  of  the 
jury.     Lady   Franklin   Min.   Co.,  4   N.   Me.x.  39.    If  one  county   Is 

8 


§g  71.  7"-3  (;i:m:kai.  i'KInciim.ks.  58 

{   71.   Affidavit  on  account  of  convenience  of  witnesses. 

Form  No.  J. 

[Title.] 
[Venue.] 
[Same  as  in  No.  5,  down  to  III.] 

III.  I  liave  fully  and  fairly  stated  to  my  counsel  the  facts 
which  I  expect  to  prove  by  each  and  every  one  of  the  following 
witnesses,  viz.:  J.  K.,  L.  M.,  and  0.  P.;  and  each  and  every 
one  of  them  is  a  material  and  necessary  witness  for  my  defense 
on  the  trial  of  this  cause,  as  1  am  advised  by  my  said  counsel, 
and  verily  believe,  and  that  without  the  testimony  of  each  and 
every  one  of  the  said  witnesses,  I  can  not  safely  proceed  to  the 
trial  of  this  cause,  as  I  am  also  advised  by  my  said  counsel,  and 
verily  believe. 

IV.  That  each  and  every  one  of  said  witnesses  reside  in  the 
county  of ,  viz.:     [State  the  residence  of  each.] 

V.  The  facts  which  I  expect  to  prove  by  said  witnesses  are 
as  follows:     By  J.  K.,  the  fact  that,  etc.;  by  L.  M.,  that,  etc. 

[Jurat.]  [Signature.] 

Where  an  action  to  compel  a  conveyance  of  real  estate  is 
commenced  in  the  county  where  the  real  estate  is  situated,  the 
place  of  trial  may  be  changed  by  agreement  of  the  parties,  or 
by  order  of  the  court,  where  the  convenience  of  witnesses  will 
be  promoted  by  such  change.-'^^ 

§  72.  The  same  —  what  affidavit  should  state.      The     affidavit 

should  be  made  by  tbe  defendant  bimself,  but  may  be  made  by 
the  defendant's  attorney  where  special  reasons  are  shown. ^^* 
The  facts  expected  to  be  proved  must  be  stated  in  the  affidavit, 
and  wherein  they  are  material  must  be  shown. ^^^  And  the  facts 
that  each  is  expected  to  prove  should  1)0  specifically  stated 
where  there  is  any  contest  as  to  the  convenience  of  witnesses. ^^' 
The  affidavit  should  state  the  witnesses'  names  and  residence. 
The  statement  that  they  are  residents  of  tbe  county  merely  is 

attached  to  another  for  judicial  purposes,  a  petition  tor  a  change 
of  venue  from  the  county  to  v^hich  the  other  is  attached,  upon  the 
pround  of  prejudice  of  its  inhabitants,  is  insufficient,  unless  it  shows 
that  the  prejudice  claimed  'jxtends  to  the  inhabitants  of  the  former 
county.    Blacli  v.  T^ont,  20  rol.  342. 

112  Duffy   V.    Duffy.    104    Cal.   G02. 

113  Scott  v.  Gibbs.  2  .Tohns.  Cas.  110:  Nlcholl  v.  Nlcholl.  66  Cal.  36. 

114  People  V.  Hayes,  7  Ilnw.  Pr.  248. 

115  Price  V.  Fort  Edward  Water  Works,  16  How.  Pr.  51. 


59  PLACE    OF   TRIAL.  §  73 

not  sufficient/^®  as  the  place  of  trial  will  be  determined  by 
the  county  in  which  the  witnesses  reside  rather  than  by  the  dis- 
tance they  must  travel. ^^"  That  each  and  every  one  is  a  neces- 
sary witness  must  appear,  and  that  without  the  testimony  of 
each  he  could  not  safely  proceed,  is  also  essential."^  The  words 
"  every  one  of  them  "  are  held  essential. ^^^  It  must  appear  that 
the  witnesses  are  necessary  as  well  as  material. ^^*^  And  wherein 
they  are  material,  and  that  without  them  he  can  not  safely  go 
to  trial. ^^^  Ver}-  little  reliance  is  placed  by  the  courts  upon 
a  general  allegation  of  tlie  materiality  of  witnesses,  unless  it  be 
shown  wherein  they  are  material. ^-^  The  affidavit  in  New  York 
should  state  among  other  things,  that  he  fully  and  fairly  stated 
his  case  to  counsel:  9  Wend.  431;  3  Cow.  14;  giving  name  and 
residence  oi^such  counsel,  and  has  fully  and  fairly  disclosed  to 
him  the  facts  which  he  expects  to  prove  by  each;  ^^  and  that  he 
has  a  good  and  substantial  defense  upon  the  merits.^^  When 
defendant  is  himself  a  counselor,  the  affidavit  may  be  modified 
accordingly. '2*^  It  should  also  state  the  name  of  the  county 
designated  in  the  complaint  as  the  county  of  trial. ^^  And  if 
not  made  by  all  the  defendants,  the  reason  why.^^ 

S  73.  The  same  —  granting-  motion  discretionary.  The  grant- 
ing or  refusing  of  a  motion  to  change  the  venue  on  the  ground 
of  convenience  of  witnesses  is  discretionary  with  the  trial  court, 
and  subject  to  review  only  in  cases  of  abuse. -^^     In  an  action 

n«  Anonymous,  r.  Cow.  P,R9:  Wostbrook  v.  Merritt,  1  How.  Pr. 
19.":  spe  Pierce  v.  r;»inn,  3  Hill,  445. 

117  Hull  V.  Hull.  1  Hill,  (;71;  People  v.  Wright.  5  How.  Pr.  23. 

ii«On<'n<lapra   Co.    Bk.    v.    Shepherd.    19   Wend.    10;    Satterleo   v. 
C.root.    G  Cow.   .33;  3  Id.  425;   G  id.   389;   Coustantine  v.    Dunham,' 
9  Wend,  431. 

lift  See  cases  elfed  In  preeedin^r  note. 

1-0  Satterlee  v.  Oroot.  G  Cow.  33:  see  Vounp:  v.  Scott,  3  Hill,  32,  35. 

121  Anonymous,  3  Wend.  424;  Constiinilnc  v.  Dunham,  9  id.  431. 

rj2  w-o]  le  v.  Hayes,  7  How.  Pr.  24S.  It  is  not  necessary,  how- 
ever, to  statf  that  aflianl  cxpe'fs  to  be  able  to  procure  the  attei'd- 
nnee  of  the  wllnessfs  at  tlie  trial.    Keavls  v.  Cowt-ll,  ^^C^  Cal.  ."8S. 

123  0  Wend.  10;  HeiiiliiRw;iy  v.  Spaiildinj,',  1  How.  Pr.  70;  Rnbin- 
8«>n  V.  .Mcrrltf,  id.  1<;5;  Anonymous,  1  Hill.  GG.S;  Am.  Ex.  Bank  v. 
Hill,  22  How.   Pr.  29;  3  Cow.  14. 

12J  I'resldent.  ete.  v.  Board  of  Su|iervisors,  1  How.  Pr.  1G2. 

120  Cromwell  v.  Van  Itensrelacr,  3  Cow.  3IG. 

12flp,,ill   r.   Babbitt.   1    How.   Pr.   1S4;   1    Hill.   008. 

i27WelIlnc  V.   Swfet,   1    How.   Pr.    150. 

l28Pler8on  v.  MfCahill,  22  Cal.  127:  Hanchett  v.  Finch.  47  id.  192: 


§§  T-i,  To  GENEUAL    I'lUNCU'LES.  60 

to  foreclose  a  mortgage  upon  lauds  partly  in  two  counties,  where 
the  allidavits  on  the  part  of  the  defendants  established  clearly 
that  the  convenience  of  witnesses  would  be  promoted  by  a 
change  of  venue  to  the  other  county  in  which  the  suit  might 
properly  have  been  brought,  and  the  record  discloses  no  reason 
or  sutlicient  siiowing  to  the  contrary,  an  order  denying  the  mo- 
tion of  the  defendants  for  such  change  can  not  be  justified  upon 
the  ground  that  the  granting  of  such  orders  is  in  the  discretion 
of  the  court,  and  it  will  be  reversed  upon  appeal.^^ 

§  74.  The  same  —  when  motion  may  be  made.  It  would  seem 
that  in  Nevada  an  application  for  change  .of  venue  for  con- 
venience of  witnesses  is  proper  after  answer  filed  and  cause  set 
for  trial. ^^'^  In  New  York  the  motion  for  change  on  this  ground 
can  not  be  made  before  issue  joined,^^^  and  the  saine  is  true  in 
California.^^^  Consequently  a  plaintiff  can  not,  before  issue 
joined,  use  this  ground  to  resist  a  motion  to  change  the  venue, 
made  by  the  defendant,  on  the  ground  of  nonresidence  in  the 
county  in  which  the  action  is  brought. 

§  75.  Affidavit  on  the  ground  of  disqualification  of  the  judg«. 

Form  No.   8. 
[Title.] 
[Venue.] 
[Same  as  in  No.  5  down  to  III.] 

III.  That  the  Hon.  X.  Y.,  judge  of  the  court  in  which  the 
complaint  in  this  action  is  filed,  is  disqualified  from  presiding 
in  the  same  [he  being  related  to  the  plaintiff  within  three  de- 
grees of  consanguinity,  to-wit:  a  brother  of  the  plaintiff;  or  he 

*  Avila  V.  Meherin,  G8  id.  478;  Teople  v.  Vincent,  95  id.  427;  Stock- 
ton, etc.,  Agr.  Works  v.  Honser.  103  id.  377;  State  v.  Superior  Ct., 
9  AVash.  St.  673;  De  Wein  v.  Osbom,  12  Ool.  407;  Michael  v.  Mills, 
22  id.  439.  The  mere  prei)onderance  in  number  of  witnesses  on  tlie 
one  side  or  the  other  is  not  necessarily  decisive  of  the  application. 
Clanton  v.  Kuffner,  78  Cal.  2(>S. 
128  Thompson  v.   Brandt,   98  Cal.   156. 

130  Sheckles  v.  SheckU's,  3  Nev.  404;  compare  Williams  v.  Keller. 
6  id.  141. 

131  Mason  v.  Brown,  6  How.  Br.  481;  MeiTill  v.  Grinnell,  10  id. 
31;  Toll  V.  Cromwell,  12  id.  79;  Hubbard  v.  Nat.  Ins.  Co.,  11  id.  149. 

132  Cook  V.  Bendersast,  61  Cal.  72.  Neither  party  can  move  for  a 
change  of  venue  on  the  ground  of  the  convenience  of  witnesses,  until 
after  answer.  Thomas  v.  Blacerville,  etc.,  Mln.  Co.,  65  Cal.  600; 
Howell  V.  Stetefeldt  Furnace  Co.,  69  id.  153;  Wallace  v.  Owsley, 
11  Mont.  219. 


61  PLACE    OF   TRIAL.  §  76 

having  heretofore  acted  as  coimsel  iu  this  action  on  the  part  of 
the  plaintiff]. 133 

[Date.]  [Signature.] 

§  76.  The  same  —  what  amounts  to  disqualification  —  bias 
or  prejudice.  Bias  or  prejudice  on  the  part  of  the  judge  consti- 
tutes no  legal  incapacity  to  sit  on  the  trial  of  a  cause,  nor  is 
it  a  sufficient  ground  to  authorize  a  change  of  place  of  trial. 
The  fact  alone  that  the  judge,  on  a  previous  trial  of  the  same 
cause,  made  an  erroneous  ruling,  is  no  evidence  of  the  exist- 
ence of  bias  or  prejudice  in  his  mind.^^^  ISTor  is  the  exhibition 
by  a  judge  of  partisan  feeling,  or  the  unnecessary  expression  of 
an  opinion  upon  the  justice  or  merits  of  a  controversy,  though 
exceedingly  indecorous,  improper,  and  reprehensible,  as  calcu- 
lated to  throw  suspicion  upon  the  judgment  of  the  court,  and 
bring  the  administration  of  justice  into  contempt,  sufficient  to 
authorize  a  change  of  venue,  on  the  ground  that  the  judge  is 
disqualified  from  sitting.  The  law  establishes  a  different  rule 
for  determining  the  disqualification  of  judges  from  that  applied 
to  jurors. '3^^  And  bias  or  prejudice  of  the  presiding  jvidge  is 
not  a  legal  ground  upon  which  a  motion  for  change  of  venue 
may  be  granted  in  a  civil  action,  there  being  no  statute  ex- 
pressly disqualifying  a  judge  upon  that  ground  in  such  action. i^** 
Thus,  bias  and  prejudice  of  the  judge  against  the  defendant 
corporation  and  its  president  and  resident  manager  is  not  a 
ground  of  disqualification,  ami  will  not  entitle  the  defendant 
to  a  cbange  of  venue. ^^^ 

133  This  affidavit  1.'^  rarely  if  over  niado  as  a  rnlo;  tlie  haro  sug- 
poRtlon  to  tho  Judpe  of  nny  one  of  those  faots  is  suftlcient.  As  to 
what  fonstltute  disqualifications,  see  Cal.  Code  Civ.  Pro.,   §   170. 

134  I'eoi)lo  V.   Williams.  24  Cal.  31. 
is.'v  MrCauley  v.  Woller,  12  Cnl.  TjOO. 

130 /„  re  I>avl8'  Estate,  11  Mont.  1;  In  re  Jones,  103  Cal.  397;  see 
Cal.   Codo   Civ.    Pro..   §   170. 

137  Hulwor.  otc.  Mln.  Co.  v.  Standiird.  otc.  Mln.  Co..  83  Cal.  013. 
The  refusiil  of  a  Jiistico  of  tlie  peace  to  allow  a  chanjie  of  venue, 
iipoii  an  nihdavif  sliowiiij:  tiio  intorosi,  i)n'jndice,  and  l>ias  of  the 
Justlfp,  tlioiiirli  ornmooiiH.  atid  suhji'ot  fo  reversal  npon  apjieal, 
does  not  render  sulisoquent  procoerllnKS  before  the  jnslloe  without 
liiriadlftlon.  nor  invnlidafo  ilic  Judunienf  rendered  by  hlni,  nor 
render  the  eonstnble  liable  fo  tlie  «lefondant  for  llie  fV)nverRion  of 
IiIh  crnperty  sold  under  e,xenitlon  issued  upon  such  judgment. 
Kltziiian  v.  I'.urnliam,   114  Cal.  r)22. 


§§  T7,  78  GENKKAL    I'HIXCIIM.ES.  63 

§  77.  The  same  —  consanguinity.  The  statutes  of  all  of  the 
stiiles  (lis(jualit'v  jiulgos  from  hearing  and  determining  causes 
when  they  are  rehited  to  the  parties  therein.  The  statute  of 
California,  wliich  may  be  tal<en  as  an  example  in  this  regard, 
provides  that  no  judge  shall  sit  or  act  as  such  in  any  action  or 
proceeding,  when  he  is  related  to  either  party  or  to  an  attorney, 
counsel,  or  agent  of  either  party,  by  consanguinity  or  affinity, 
within  the  third  degree.  Such  disqualification,  however,  does 
not  prohibit  him  from  arranging  the  business  of  his  court,  or 
from  transferring  such  action  to  some  other  court. ^^^  Even 
if  no  objection  is  made,  he  has  no  right  to  act,  and  ought,  of 
his  own  motion,  to  decline  to  sit  as  judge.  In  such  case  an  order 
of  the  judge  dismissing  the  action  is  void,  on  the  ground  of  his 
incapacity  to  act.-^^® 

§  78.  The  aame  —  counsel  in  the  case.  It  is  sufficient  cause 
for  removal  tliat  the  judge  where  tlie  venue  was  laid  has  been 
counsel  or  attorney  in  the  case.^'*'^  Thus  where  the  probate 
judge  held  a  power  of  attorney  from  certain  persons  claiming 
to  be  the  heirs-at-law  of  the  deceased,  and  authorizing  him  to 
receive  for  them  all  money  and  property  which  they  might  be 
entitled  to  from  the  estate,  for  which  he  was  to  receive  a  per- 
centage upon  the  proceeds  of  the  estate,  and  that  these  proceed- 
ings were  instituted  at  the  instance  of  said  probate  judge, 
a  change  of  venue  should  be  granted. ^*^  A  change  of  the  place 
of  trial  may  l^e  had  on  the  ground  that  the  judge  of  the  court 
in  which  the  action  was  brought  had  received  a  general  re- 
tainer from  one  of  the  parties.^"*^     But  a  judge  is  not  disquali- 

138  Gal.  Code  Civ.  Pro.,  §  170;  De  la  Guerra  v.  Burton,  23  Cal.  592. 
The  word  "  party,"  as  used  in  the  statute,  is  not  confined  to  those 
who  are  parties  to  the  record  by  name,  but  includes  all  persons 
whose  interests  are  represented  by  parties  to  the  record.  Howell 
v.  Budd,  91  Cal.  342.  It  is  held  in  Colorado,  tliat  the  judge  is  not 
necessarily  disqualified  by  the  fact  that  his  brother  is  an  attorney 
for  one  of  the  parties  in  the  case.    Patrick  v.  Crowe,  15  Col.  543. 

139  People  v.  Jose  Kamon  de  la  Guerra,  24  Cal.  73.  Acts  of  a 
judge,  involving  the  exercise  of  judicial  discretion,  in  a  case  where 
he  is  disqualified  from  acting,  are  not  voidable  only,  but  void. 
Frevert  v.  Swift,  19  Nev.  363. 

140  Cal.  Code  Civ.  Pro.,  §  170;  2  Wend.  290;  Barnhart  v.  Fulkerth, 
59  Cal.  1.30. 

141  Estate  of  White,  37  Cal.  190;  citing  Oakley  v.  Aspinwall,  3 
N.  Y.  .547. 

142  Kern  Valley  Water  Co.  v.  McCord,  70  Cal.  646. 


63  PLACE    OF   TKIAL.  §§  79,  80 

fied  from  sitting  at  the  trial  of  a  cause,  for  tlie  reason  that, 
before  his  election  to  the  bench,  he  had  been  attorney  for  one 
of  the  parties  in  another  action  involving  one'  of  the  issues  in 
the  case  on  trial. ^'^^ 

§  79.  The  same  —  interested  in  the  action.  Judges  are  pro- 
hibited from  hearing  and  determining  causes  in  which  they 
are  parties  or  in  which  they  are  interested.  Statutes  to  this 
effect  prevail  in  all  the  states,  and  should  receive  a  broad  and 
liberal  interpretation  rather  than  one  that  is  technical  or 
etrict.^"  This  prohibition  does  not  extend  to  cases  where  the 
interest  is  simply  in  some  question  of  law  involved  in  the  con- 
troversy, or  when  it  is  indirect  and  remote.  It  does  not  extend 
to  all  ca^es  where  the  interest  of  the  judge  is  a  direct  and  imme- 
diate interest  in  the  result  of  the  action.  But  in  an  action  for 
an  injunction,  where  the  property  of  the  judge  was  equally 
subject  to  injury  by  the  acts  sought  to  be  enjoined  as  the  prop- 
erty of  the  plaintiff,  and  where  the  injunction  sought  would 
equally  protect  his  property,  the  judge  is  disqualified  from  act- 
ing, and  a  writ  of  prohibition  will  lie  to  restrain  him  from  pro- 
ceeding in  the  action,  although  the  court  over  which  he 
presides  has  jurisdiction  of  the  cause.^'*'^ 

5  80.  The  same  —  form  of  aflBdavit.  An  affidavit  made  on 
application  to  change  tiie  place  of  trial  which  states  "  that  the 
judge,  as  the  affiant  is  informed,  and  verily  believes,  has  fre- 
quently stated  that  he  believes  the  affiant  guilty  of  the  crime 
charged  in  the  indiclmont,  and  has  frequently  expressed  himself 

143  riephorn  v.  f'lefrhorn,  r,c,  Cal.  .300. 

u*  Stofkwell  V.  Township  Hoard  of  Wlilte  T>ake.  22  Mich.  3.50; 
North  Hlooiiifield  fJravel  .Miii.  f'o.  v.  Kcyser,  fiH  Cal.  [M5. 

nn  North  Rlooinlield  Cravcl  Min.  Co.  v.  Koyser,  58  Cal.  ?Ar>. 
The  fact  that  the  jiulfre  hofore  whom  a  case  Is  to  bo  tried  has 
commenced  an  liideijcndent  action  against  the  plaintiffs  upon  an 
rntlrely  different  cause  of  action,  it  a]»pGarin\'  that  the  judRTnent 
in  one  case  would  in  no  way  ho  affer-tcd  hy  tlu^  judgment  in  tlie 
otlier,  docs  not  sliow  such  inleiesi  in  the  action  a.s  to  disqualify 
hlni  from  tr>luj^  llie  lausc,  and  he  may  jiropoi-ly  deny  a  niot'on  to 
chnnKC  the  [dace  of  trial  for  sudi  rlle.'Cfl  (liS(|U.vlilic  tion.  Snutli- 
em,  etc.,  Hoad  Co.  v.  San  I'.cruardino  .Nat.  Banlc,  100  Cal.  316. 
In  Oldo.  it  Ih  a  iH'cuniai-j'  interest  of  the  .ludije  in  the  event  or 
result  of  the  trial  which  requires  the  removal  of  a  cause.  State 
V.  Wlnpet.  37  Ohio  St.  ir,3. 


§§81,82  GENEHAL    IMUXCIPLES.  64 

against  and  adversely  to  tlie  alliant  in  connection  with  said 
charge,"  does  not  merit  consideration,  as  it  contains  a  mere 
charge  upon  information  and  belief,  and  does  not  show  how  the 
information  was  obtained,  or  upon  what  the  belief  was  based."** 
And  we  might  add,  that  such  an  affidavit,  unless  some  facts  are 
stated,  ought  to  subject  the  party  making  it  to  punishment  for 
contempt. 

§  81.  The  same  —  transfer  of  cause.  Where  a  judge  is  in- 
capacitated to  act  as  such,  the  action  should  be  transferred  — 
not  dismissed;  an  order  dismissing  the  action  would  be  null  and 
void.i*^ 

I 
§  82.  Affidavit  resisting  motion  for  change. 
Form  No.  9. 
[Title.] 
[Venue.] 

A.  B.,  plaintiff  above  named,  being  duly  sworn,  says  as  fol- 
lows: 

I.  I  have  fully  and  fairly  stated  to  E.  F.,  my  counsel  in  this 

cause,  who  resides  at ,  in  the  county  of , 

the  facts  which  I  expect  to  prove  by  each  and  every  one  of  the 

following  witnesses,  viz.:  G.  H.,  of  the  town  of ; 

J.  K.,  of  the  town  of ;  L.  M.,  of  the  town  of 

,  all  of  whom  reside  in  said  county  of ; 

and  that  they  are,  each  and  every  one  of  them,  material  and 
necessary  witnesses  for  me  on  the  trial  of  this  cause,  as  I  am 
advised  by  said  counsel,  and  as  I  verily  believe;  and  that  without 
the  testimony  of  each' and  every  one  of  said  witnesses  I  can  not 
safely  proceed  to  the  trial  of  this  cause,  as  I  am  also  advised  by 
my  said  counsel,  and  verily  believe. 

146  People  V.  Williams,  24  Cal.  31.  See,  as  to  sufficiency  of  affi- 
davit on  account  of  the  prejudice  of  the  judge,  Wabash,  etc., 
R.  R.  Co.  V.  Eddy,  72  111.  138;  McCann  v.  People,  88  id.  103.  Ir- 
relevant and  immaterial  affidavit  setting  forth  bias  or  prejudice 
on  the  part  of  the  judge.    Matter  of  .Tones.  103  Cal.  397. 

347  Burton  V.  Covarrubias,  California  April  Term,  18G5,  not  re- 
ported. Under  section  .''.{)8  of  the  Code  of  Civil  Procedure  of  Cali- 
fornia, it  is  the  duty  of  a  judge  before  whom  an  action  is  pendin-;, 
and  Tvho  is  disqualified  from  acting  as  such,  to  transfer  the  cause 
without  delay  to  some  other  court  where  the  lilie  disqualification 
does  not  exist.    Kiiimdick  v.  Crump,  98  Cal.  117. 


65  PLACE    OF   TRIAL.  §§  83,  84 

II.  That  the  facts  which  I  expect  to  prove  by  said  witnesses 
are  as  folloAvs  [state  in  detail  the  facts  and  circumstances  ex- 
pected to  be  proved  by  each  witness,  naming  him,  and  the 
materiality  of  those  facts]. 

[Jurat.]  ,  [Signature.] 

§  83.  The  same  — form  of  affidavit.  Affidavits  to  oppose  a 
motion  for  a  change  of  place  of  trial  on  the  ground  of  con- 
venience of  Mitnesses  should  be,  in  form  and  substance,  similar 
to  the  moving  affidavits  of  the  defendant,  and  should  state 
what  is  expected  to  be  proved  by  the  witnesses,^^^  and  their 
narnes.'^® 

§  84.  The  same  —  when  plaintifE  may  oppose.  In  Xew  York, 
a  motion  to  change  the  place  of  trial  on  the  ground  that  the 
county  named  in  the  complaint  is  not  the  proper  county  can 
not  be  resisted  by  the  plaintiff,  prior  to  issue  joined,  on  the 
ground  of  convenience  of  witnesses.^^^  In  California  the  prac- 
tice is  the  same  although  a  different  opinion  formerly  pre- 
vailed.^*^^  Nor  can  the  hearing  of  defendant's  motion,  made  at 
the  time  of  his  appearance  and  demurring,  be  postponed  by  the 
court  until  his  answer  is  filed,  and  leave  granted  to  the  plaintiff 
to  make  a  cross-motion  to  retain  the  case  on  the  ground  of  con- 
venience of  witnesses.^^2  If  the  plaintiff  desires  a  rechange  to 
the  county  in  which  the  action  is  brought,  he  should  make  a 
cross-motion  to  that  efl'ect.^'^^  If  the  state  of  the  case  is  such 
that  the  plaintiff  has  a  right  to  resist  the  motion  for  a  change 
of  venue,  time  to  file  counter-affidavits  may  be  allowed  him  in 
the  discretion  of  the  court.^'^^  The  voluntary  appearance  of  a 
party  resisting  a  motion  for  a  change  of  venue  gives  the  court 
jurisdiction  over  his  jiorson.  nnd  waives  all  prior  information. ^°^ 

14S  rinondat'a  Co.  Bank  v.  Shepherd,  19  Wend.  10;  American 
E.xcli.  n-.iuk  v.  Hill,  '22  How.  Pr.  20. 

Hf  Lochr  V.  Latham.  1.'>  Cal.  4LS.  Wlion  oounter-afRdavits  are 
unnecossary.    See  Apr.  Works  v.  Ilouser.  10.^  id.  377. 

liio  Internal ional  !>.  Ass.  f'o.  v.  Sweetland,  14  Abb.  Pr.  240. 

161  Took  v.  T'endorfjast.  C.l  Cal.  7i;;  Hailey  v.  Sloan,  05  id.  3S7; 
contra,  Itx-br  v.  Latham,  in  Id.  41S;  .Tenklns  v.  California  Stage  Co., 
22  id.  .'">.'{7;  Hull  v.  (\  V.  II.  R.  Co.,   if)  id.  4.')4;  see  §  74.  ante. 

in2HpaId  v.  Hcndy.  0,->  Cal.  .^21. 

i'>3  fook  V.  TenderKast,  CI  Cal.  72;  Moon  v.  Gardner,  .5  Abb.  Pr. 
243. 

1S4  PifTSon    v.    MrC.Mliill.    22   Cal.    127. 

1B5  Powers  V.  lirowder,  1.''.  .Mo.  154. 

Vol.  \~'J 


§§85-87  GENK15AL    I'lUXCIPLES.  66 

§  85.  Order  denying  motion. 

I'orDi  No.   10. 
[Title.] 
At  a  regular  term  of  the  Superior  Court  of  the  county  of 

y  state  of  California,  hekl  at 

Present,  the  Honorable ,  Judge. 

The  motion  to  cliange  the  place  of  trial  in  this  action  coming 
on  regularly  to  be  heard  this  day,  A.  B.,  Esq.,  appearing  in 
faA'or  of  said  motion,  and  C.  D.,  Esq.,  appearing  in  opposition 
thereto,  and  the  court  being  duly  advised,  it  is  ordered  that  the 
motion  to  change  the  place  of  trial  in  this  action  be  and  the 
same  is  hereby  denied  [with -  dollars  costs]. 

§  86.  Dismissal  —  effect  of.  When  two  motions  are  pending 
in  an  action  at  the  same  time,  one  to  change  the  venue,  and 
one  to  dismiss,  an  entry  of  a  judgment  of  dismissal,  without  any 
formal  order  denying  the  motion  to  cliange  the  venue,  is  a 
virtual  denial  of  the  same.^^^ 

§  87.  When  motion  will  be  denied.  The  motion  will  be 
denied  where  it  is  clear  that  the  defendant's  object  is  merely 
delay. •'^'^  As  where  nearly  six  months  had  elapsed  before  the 
motion  was  made,  and  long  after  the  defendant  had  answered. ^^^ 
Or  where  by  stipulation  evidence  is  confined  to  facts  occurring 
in  the  county  where  venue  is  laid.^^*^  Or  where  plaintiif  under- 
took to  bear  all  expenses  of  bringing  defendant's  witnesses.^^" 
Or  where,  after  service  of  papers  for  a  motion  to  change  venue, 
plaintiff  amended  his  complaint  changing  the  venue. ^^^  Or 
agreed  to  change  the  venue;  or  where  defendant  suifered  a  de- 
fault.^^^  A  change  of  venue  is  proi>erly  refused,  unless  a  party 
has  complied  with  the  requisites  of  the  statute.^^^  Probable 
delay  of  trial  in  the  county  which  would  otherwise  be  most  con- 

156  reople  v.  .Tose  Ramon  de  la  Guerra,  24  Cal.  73. 
i57Kiibourne  v.  Fairchild,   12  Wend.  293;  Garlock  v.  Dunkle,  22 
id.  61.5;  and  see  Dennison  v.   Chapman,   102  Cal.   618. 
i58Tooms  v.  Randall,  3  Cal.  438. 

159  Smith  v.  Averlll.  1  Barb.  28. 

160  Worthy  v.  Gilbert,  4  .lohns.  492;  but  see  Rathbone  v.  Harman, 
4  Wend.  208. 

161  Wolverton  v.  Wells,  1  Hill,  374. 
ifi2  Britton  v.  Peabody,  4  Hill,  69. 
163  Lewin  v.  Dille,  17  Mo.  64. 


67  PLACE    OF   TKIAL.  §  88 

venient  is  a  reason  for  refusing  the  cliange.^*^  An  application 
by  defendants  for  change  of  venue  to  another  county  on  the 
ground  that  they  are  residents  of  such  county,  that  the  action 
is  founded  on  a  contract  to  be  performed  therein,  and  that  tlie 
summons  was  there  served  on  them,  but  which  does  not  show 
that  the  plaintiff  was  not  a  resident  of  the  county  where  the 
action  is  brought  when  the  suit  was  commenced,  is  properly 
refused.^*^  But  it  is  held  that  where  a  motion  for  change  of 
venue  to  the  proper  county  for  trial  has  been  made,  upon  a 
sufficient  affidavit  of  merits,  the  failure  of  the  applicant  for 
transfer  to  appear  at  the  time  set  for  the  hearing  of  his  motion 
affords  no  ground  for  denying  the  application.^^^  An  order 
refusing  to  change  the  venue  to  the  county  in  which  the  de- 
fendant claims  to  reside  will  not  be  reversed  upon  appeal  if  the 
evidence  as  to  the  place  of  residence  of  the  defendant  is  con- 
tlicting.^^'^  A  mere  showing  by  the  plaintiff  that  he  was  ig- 
norant of  the  place  of  residence  of  the  defendant  wlien  the  ac- 
tion was  commenced,  without  showing  that  he  used  all  proper 
diligence  to  ascertain  his  residence  before  suit  and  failed,  does 
not  entitle  the  plaintiff  to  have  a  trial  of  the  action  in  the 
county  designated  by  him  other  than  that  of  the  defendant's 
residence. ^'^ 

§  88.  The  same  —  appeal  from.  An  appeal  from  an  order 
refusing  to  change  the  venue  of  an  action  does  not  operate  to 
stay  proceedings  in  the  court  below  until  such  an  appeal  is 
determined. ^^^  An  order  refusing  a  change  of  venue  on  the 
application  of  defendant  in  a  criminal  prosecution  will  only  be 
reviewed  in  cases  of  gross  abuse  of  discretion. ^'^*'  But  it  is  not 
to  be  supposed  that  the  Supreme  C'mirt  will  trust  implicitly  in 
the  discretion  of  inferior  courts.^'* 

i'>»  KliiR  V.  Viinderliili,  7  How.  I'r.  3S.1;  Goodrich  v.  Vaudorbllt, 
id.  4<;7. 

iwite  We-in  v.  Osl)orn.  lli  Col.  -JOT. 

io«  state  V,  Superior  Ct.,  9  Wash.   St.  C.GS. 

107  Daniels  v.   riiiirch,  00  Tal.   13. 

"WThurlier  v.  Tliurber,  11.'!  Cnl.  OOT;  see  Bacliman  v.  Cathray, 
113  Id.  4(18. 

i«»  Howell  V.  Tlionipsoii,  70  Cal.  63;").  I'.iit  ii  was  otherwise  under 
tlie  foniuT  Praffico  A<  t.    Sec  T'lerson  v.   McCahill,  L'3  Id.  249. 

170  p«.„pie  V.  Fisher.  C  <"iil.   l.">4. 

171  Peoi.le  V.  I.ee.  r.  Cal.  ."..-,3. 


§§  89-90b  GENERAL    PRINCIPLES.  68 

§  89.  Order  granting  change  of  place  of  trial. 

Form  No.   ii. 

[Commencement  as  in  preceding  form.] 

It  is  ordered  that  the  phice  of  trial  of  this  action  be  and 

hereby  is  changed  from  the  county  of    to  the 

county  of  

§  90.  The  same  —  effect  of.  It  is  error  for  the  court  to  re- 
fuse to  change  the  place  of  trial  upon  a  proper  showing.^'^^ 
But  the  fact  that  tlie  affidavit  for  a  change  of  venue  may  be 
defective  will  not  render  the  order  changing  the  venue  a  nullity, 
nor  should  the  case  be  dismissed  for  this  defect.  The  objection 
should  be  made  at  the  time  the  petition  for  a  change  is  acted 
upon.^"^  So,  also,  although  the  affidavit  upon  which  the  ap- 
plication to  change  the  venue  of  an  action  is  made  may  not 
show  any  legal  cause  for  such  change,  still  if  the  court  grants 
the  application,  it  has  acted  judicially  upon  a  matter  within  its 
cognizance,  and  where  it  was  clothed  with  discretion,  and  by 
the  order  the  place  of  trial  becomes  changed.^'^^ 

§  90a.  The    same  —  suspension    of    power    of    court.    It  is  the 

duty  of  the  court  to  hear  and  determine  the  motion  for  change 
of  venue  before  taking  any  other  judicial  action  in  the  case. 
Such  motion  intercepts  all  judicial  action  in  the  case,  and  sus- 
pends the  power  of  the  court  to  act  upon  any  other  question, 
until  the  motion  has  been  determined.^'^^ 

§  90b.  The  same  —  presumption  of  regularity.  An  order  chang- 
ing the  place  of  trial  will  be  presumed  to  have  been  prop- 
erly made,  when  the  record  on  appeal  from  the  order  fails  to 
contain  any  papers  identified  as  having  been  used  in  the  lower 
court  on  the  hearing  of  the  motion  to  change. ^''^^ 

i72Grewoll  V.  Walden,  23  Cal.  1G5. 

173  rotter  V.  Adams'  Executors,  24  Mo.  159. 

174  People  v.  Sexton,  24  Cal.  78.  The  Superior  Ctourt  io 
which  an  action  was  brought,  after  making  an  order  granting  a 
change  of  venue,  Las  jurisdiction  to  set  aside  the  order  on  the 
ground  that  it  was  inadvertently  made.  Balior  v.  Fireman's  Fund 
Ins.  Co.,  73  Cal.  182. 

i7r>  Brady  v.  The  Times-Mirror  Co.,  lOG  Cal.  56. 
i76McAulay  v.  Truckee  Ice  Co.,  79  Cal.  50. 


69  PLACE    OF   TRIAL.  §§  90c-93 

§  90c.  The  same  —  motion  overruled  —  remedy.  W  hen  a  mo- 
tion for  change  of  venue  is  overruled  without  delay,  an  appeal 
from  the  order  affords  a  complete  remedy,  and  mandamus  will 
not  lie  to  compel  the  court  to  change  the  place  of  trial. 
Mandamus  is  only  proper  when  the  court  unreasonably  delays 
to  decide  the  motion.^"  Under  ISfevada  practice  an  order 
changing  the  place  of  trial  is  not  appealable,  but  is  properly 
brought  before  the  court  on  an  appeal  from  the  judgment  as 
an  intermediate  order  involving  the  merits  and  necessarily 
affecting  the  judgment.^"* 

§  91.  The  same  —  proceedings  and  practice.  In  California, 
when  an  order  is  made  transferring  an  aittion  or  proceeding 
for  trial,  the  clerk  of  the  court,  or  justice  of  the  peace,  must 
transmit  the  pleadings  and  papers  therein  to  the  clerk  or  justice 
of  the  court  to  which  it  is  transferred.  The  costs  and  fees 
thereof,  and  of  filing  the  papers  anew,  must  be  paid  by  the 
party  at  whose  instance  the  order  was  made.  The  court  to 
which  the  action  or  proceeding  is  transferred  has  and  exercises 
over  the  same  the  like  jurisdiction  as  if  it  had  been  originally 
commenced  therein."^  If  the  defendant  procures  a  change  of 
venue,  the  plaintiff  may  pay  the  costs  and  transmit  the  papers 
to  the  county  fixed  as  the  place  of  trial,  and  have  the  case 
placed  on  the  calendar  and  tried. ^^*'  In  some  states,  on  a  motion 
to  change  the  place  of  trial,  the  costs  were  usually  made  to 
abide  the  event  of  the  suit,  whether  the  motion  be  granted  or 
denied. ^^^  But  it  may  be  otherwise  where  the  plaintiff*  has  not 
complied  with  a  demand.^^^ 

§  92.  The  same  —  service  of  order.  1  n  New  York,  a  certified 
copy  of  tbis  order  must  be  served  upon  the  plaintilT,  otherwise 
tbe  plaintiff  may  proceed  as  if  the  place  of  trial  had  not  been 

1T7  County  of  San  Joaquin  v.  Superior  Ct.,  98  Cal.  002;  see,  also, 
In  re  I)avls'  Estate,  11   Mont.  1. 

17«  State  V.  Sliaw,  21  Nev.  222. 

170  Cnl.  Codo  Civ.  Pro.,  fi  390. 

iftORrnolts  V.  Kou^'liiss.  ?,2  Cal.  208. 

18"  Oiilney  v.  Siteliiiau.  «i  Wend.  T^2:>\  Norton  v.  Kicli.  20  .Tolms. 
47.';:  \>\\i  s.-e  Wortliy  v.  Cjlltcrt,  4  id.  492. 

!'•- Iltihhard  V.  Nntional  rrote<-1i(»n  Ins.  Co.,  11    ITow.  Pr.  149. 
Ab  to  ffistR  in  fljiffifil  fasps,  sen  Pnrdy  v.  Wardell,  1<l  Wc^nd.  019; 
r»onaldson  v.  Jackson,  9  Id.  450;  see  Estep  v.  Armstrong,  09  Cal. 
5.36. 


§§  03-94a  GENERAL    I'KlNCirLES.  70 

changed. '■'^^     An  appearance  and  trial  is  a  waiver  of  any  irregu- 
larity in  this  regard.'^"* 

§  93.  Older  to  transfer  cause  to  another  court,  on  account  of 
disability  of  the  judge. 

Form  No.   12. 

[Title.] 

It  heing  shown  to  the  court  by  G.  II.,  of  counsel  for  the  de- 
fendant, that  the  judge  of  this  court  was  heretofore  of  counsel 
in  a  cause  involving  the  same  title  which  is  in  issue  in  this  cause: 

It  is  ordered,  that  this  cause  be  transferred  to  the  Superior 
Court  of  the  county  of for  trial. 

g  94.  Notice  of  time  and  place  of  trial  of  transferred  action. 
Form  No.   13. 
[Title.] 
To  A.  B.,  the  plaintiff  in  the  above-entitled  action,  and  C.  I)., 
the  defendant  in  said  action: 
You  will  please  take  notice  that  the  said  action,  transferred 

to  the  above-entitled  court  from  the    court   of 

the     township,    in     ,    county    of 

,  is  set  for  trial  before  me,  at  my  courtroom,  in 

said township,  in  said county,  the 

day  of ,  18 .  . ,  at o'clock,  p.  m. 

J.  P., 
[Date.]     Justice  of  the  Peace  of  said township.^*^^ 

§  94a.  The  same  —  appeal  from  Justice's  Court,  etc.  Under 
section  5  of  article  6  of  the  Constitution  of  California,  an  appeal 
from  a  Justice's  Court  to  the  Superior  Court  of  the  county  in 
which  the  action  was  brought  can  not  be  transferred  to  another 
county  for  trial,  notwithstanding  the  defendant  is  a  resident 
of  the  latter  county.  Section  980  of  the  Cod©  of  Civil  Pro- 
cedure purporting  to  authorize  such  a  transfer  is  held  to  be  in 
conflict  with  the  above  section  of  the  Constitution.^^''  Where 
an  action  commenced  in  Justice's  Court  is  on  the  defendant's 
motion  transferred  for  trial  to  the  Superior  Court  of  the  county 
in  Avhich  it  was  brought,  because  the  answer  shows  that  its 

1R3  Root,  Adni'r,  etc.  v.  Taylor,  IS  .Tohns.  3.35;  Keep  v.  Tyler,  4 
Cow.  TAl. 
1*^4  Bettis  v.  Logan,  2  Mo.  4. 
185  See  Cal.  Code  Civ.  Pro.,  §  8.36. 
i*-e  Gross  V.  Superior  Ct.,  71  Cal.  aS2;  Lufo  v.  Superior  Ct.,  Id.  55.5. 


71  PLACE    OF   TRIAL.  §§  95,  06 

determination  necessarily  involves  a  question  as  to  the  legality 
of  a  tax,  the  Superior  Court  has  no  power  to  change  the  place 
of  trial  to  the  county  in  which  the  defendant  resides,  in  the 
absence  of  a  demand  for  a  change  made  in  the  Justice's  Court 
at  the  time  of  answering.^^''  Error  in  changing  the  venue  from 
the  County  to  the  District  Court,  on  the  ground  that  the  amount 
in  controversy  as  claimed  by  the  respondent  exceeds  the  juris- 
dictional limit,  is  waived  where  the  parties  appear  generally  in 
the  latter  court,  amend  their  pleadings,  and  go  to  trial  without 
objection. ^^ 

§  95.  Removal  of  causes  from  state  to  United  States  courts  — 
statutes  affecting.  The  principal  statutes  of  the  United  States, 
authorizing  and  regulating  the  transfer  of  causes  from  the  state 
courts  to  the  courts  of  the  United  States,  have  been  the  acts  of 
1789,  186(5,  1867,  and  1875.  The  twelfth  section  of  the  Ju- 
diciary Act  of  1789,  the  act  of  July  37,  1866,  and  of  March  2, 
1867,  though  technically  repealed,  are  substantially  embodied 
in  section  639  of  the  Revised  Statutes  of  the  United  States. 
There  are  other  provisions  of  the  statute  covering  the  transfer 
of  a  limited  number  of  special  cases,  but  section  639  of  the 
Revised  Statutes,  and  the  act  of  March  3,  1875  (18  U.  .S.  Stats. 
470),  as  amended  by  the  act  of  March  3,  1887  (24  U.  S. 
Stats.  552),  as  re-enacted  by  the  act  of  August  13,  1888  (25 
U.  S.  Stats.  433),  provide  for  nearly  all  tiie  cases  met  with  in 
ordinary  practice.^^® 

S  96.  Special  cases.  Special  cases  not  falling  within  section 
639,  r.  S.  Kev.  Stats,  or  the  act  of  1875,  or  that  of  1887,  are 
the  following:  1.  Causes  civil  and  criminal,  in  any  state  court, 
against  persons  denied  civil  riglits;^^"  2.  Suits,  civil  and  crimi- 
nal, against  revenue  officers  of  the  United  States,  and  against 
officers  and  other  persons  acting  under  the  registration  laws;^°* 
3.  Suits  by  aliens  against  civil  officers  of  the  United  States, 
under  specified  circumstances. '*'- 

187  Powell   V.   Siitro.  so  ral.  .V.9. 

i««  Otfrno  C'anjil  To.   v.   Fosdifk,  20  f"ol.  .^)22. 

i8!»S<-e  OoHfy,  Uf'tu.  of  Causes  CM  cd.),  §  5(!;  1  Desty,  Fed.  Tro. 
rRfh  i'<].).  S  !!<;.  'i'lif  art  of  .\iiuns1  iri,  ISSK,  expressly  rejx'als  all 
lawa  and  parts  of  laws  in  conflict  with  its  provi.slous. 

100  T'.   8.    Itfv.   Stats..    H   «M1,   (•.12. 

101  Id.,  8  f;i3. 

182  Id.,  8  044.  Tlipre  was  nlso  a  provision  relative  to  suits  apainst 
certain  frdeml  rurporations,  oi'  tlioir  inctnbers  ns  sufli  (U.  S.  Kev. 


^  IHia  GKNF.HAl.    I'lUNCli'LES.  72 

§  96n.  Removable  causes  —  act  of  1887.  Tlio  act  of  March 
3,  1887,  as  corrected  by  act  of  August  1!},  1888,  and  amendatory 
of  tlio  act  of  187;"),  may  now  he  regarded  as  embodying  the 
general  hnvs  on  Uie  subjecl  of  the  removal  of  causes.  The  in- 
tention of  the  Amendatory  Act  was  io  restrict  removals  from 
state  to  federal  courts,  and  its  provisions  should  be  strictly  con- 
strued against  any  one  seeking  to  evade  the  additional  require- 
ments which  it  puts  upon  the  right  of  removal. ^''^  The  right 
of  removal  is  restricted  as  to  the  parties  who  can  exercise  it, 
as  to  the  classes  of  actions  in  which  it  may  be  exercised,  and  as 
to  the  time  at  which  an  election  to  exercise  the  privilege  must 
be  made. •''■*'*  The  jurisdictional  amount  is  raised  from  five  hun- 
dred dollars  to  two  thousand  dollars.  So,  the  right  of  removal 
is  limited  to  the  defendant  or  defendants  in  the  suit;  but  the 
language  should  be  construed,  in  respect  to  such  defendants, 
as  was  the  prior  act  of  1875. ^'*''''  The  right  of  a  citizen  to  re- 
move a  cause  into  a  federal  court  is  not  a  vested  right  of  proj^- 
erty.  The  rules  of  statutory  construction  when  vested  rights 
are  concerned  do  not  apply  when  the  Jurisdiction  of  a  federal 
court  to  entertain  a  removal  case  has  been  cut  oft'  by  act  of 
Congress.^'-'*'  The  right  of  removal  is  restricted  by  the  Ee- 
moval  Acts  of  1887-1888  to  suits  of  a  civil  nature  "at  com- 
mon law  or  in  equity ;"^^'''  and  it  is  held  that  a  proceeding  to  es- 
tablish and  probate  a  will  is  not  a  suit  "  at  common  law  or  in 
equity,"  and  is,  therefore,  not  removable  under  said  acts.^^^ 
But  a  special  statutory  proceeding  for  the  establishment  of  a 
drain  under  the  laws  of  Indiana  is,  after  the  filing  of  the  com- 
missioner's report  in  the  state  Circuit  Court,  and  the  filing  of 
remonstrances  thereto,  a  controversy  of  a  "  civil  nature,"  which 
may  be  removed. ^^^     So,  an  action  against  private  parties  for 

Stats.,  §  040^,  but  this  provision  is  oxpi-cssly  repealed  by  the  act 
of  1SS7. 

193  Dwyer  v.  Peshall,  .''.2  Ferl.  Kop.  497;  see,  also.  Shaw  v.  Mininj;- 
Co.,  14.5  U.  S.  444. 

i9JSee  AVoolf  V.  Chisholm,  .'',0  Fed.  Rep.  SSI;  Grejiory  v.  Pike, 
G7  id.  837.  Provisions  of  tlu-  aft  in  fidl.  See  Desty,  Rem.  of 
Causes  (3d  ed.),  04-77. 

195  New  York  Construction  Co.  v.  Simon,  .53  Fed.  Kep.  1. 

if»fi  Manloy  v.  Olney,  32  Fed.  Rep.  70H. 

197  See  State  v.  Day.  etc.  Cattle  Co.,  41  Fed.  Rep.  228:  Ferguson 
V.  Ross,  .38  id.  101;  Bi-isenden  v.  Chambsrlnin.  .53  id    307. 

198 /«  re  Cilley,  58  Fed.  Rep.  977;  In  re  Foley,  70  id.  390. 

199/;;  re  Jarneckc   Ditch,   09   Fed.   Rep.    161. 


73  PLACE    OF    TRIAL.  §  96b 

Avrongfully  causing  a  United  States  marshal  to  levy  an  execu- 
tion on  the  plaintiff's  property  is  a  case  arising  under  the  laws 
of  the  United  States,  and  is,  therefore,  removable.^^  So,  a 
suit  to  compel  the  receiver  of  a  national  bank  to  pay  to  the 
complainant  certain  assets  of  the  bank  in  his  hands  is  one 
arising  under  the  laws  of  the  United  States,  within  the  mean- 
ing of  the  act  of  1887-1888.^"^  And,  generally,  a  suit  against  a 
receiver  appointed  by  a  federal  court  may  be  removed  from  a 
state  to  a  federal  court  on  that  grouiid  alone.^^ 

§  96b.  The  same  —  party  entitled  to  remove  —  citizenship. 
-Under  the  act  of  1887-1888  the  right  of  removal  is  restricted  to 
the  defendant.  The  plaintifl',  having  chosen  his  forum,  no 
matter  where,  must  remain  in  that  forum,  and  he  can  not  re- 
move at  all.  But  any  defendant  sued,  not  in  a  court  of  his 
own  state,  but  in  the  state  court  of  the  plaintiff,  may  always 
remove,  by  compliance  with  the  procedure  devised  for  that  pur- 
pose.^^  Defendants  sued  in  a  court  of  their  own  state  by 
citizens  of  another  state  have  no  right  of  removal.^'^'*  But  any 
defendant  who  is  a  citizen  of  another  state  may  remove  the 
cause,  notwithstanding  liis  codefendants  are  citizens  of  the  state 
in  which  the  action  is  brought.^^^  Nor  is  it  necessary  to  en- 
title a  defendant  to  remove  that  the  plaintiffs  should  all  be  citi- 
zens of  tbe  state  wliere  the  action  is  brought.^''^  Municipal  as 
well  as  private  corporations  are  treated  as  citizens  of  tho  state 
under  whose  laws  they  are  organized  or  created,  for  the  pur- 
pose of  removal  of  causes.^"^  The  citizenship  of  a  corporation 
within  the  meaning  of  the  Eemoval  Acts  is  fixed  in  the  state 
granting  its  charte^,  although  it  may  be  organized  for  the 
purpose  of  doing  business  chiefly  in  other  states.^^     A  suit  by 

2noiiurst   V.   Col)!),  C,\   Fed.   Kc]).   1. 

201  Hot  Siirlnps,  etc.,  Sc-liool  District  v.  First  Nat.  Bank,  61  Fed. 
Kep.  417;  Sowlcs  v.  Bauk,  4(;  id.  r>i;5. 

»»2.Towett  v.  Whitconil),  («)  Fed.  Rf>ii.  417;  and  see  Carpenter 
V.  Noitli.  Pao.  Ry.  Co.,  7.')  id.  S.-.0;  Railway  Co.  v.  Cox,  145  U.  S. 
CO '..  G0.'{. 

2"'!(;avlM   V.   Vance.  3.''.  Fed.   Rep.  H-l. 

2"4  Martin  v.  Snyder.  14n  TJ.  S.  r,<«. 

2*i''IIaII  V.  Aprlcnltnral  Works.  4S  Fed.  Rrp.  nnO;  and  soc  ReevoH 
V.  Condn-.;.  r,]    Id.  774. 

200  Alley  v.  rjunbcr  Co.,  01  Fed.  Rep.  1)0.3. 

-"Tf'ity  of  Yfdt'ta  V.  Canda.  (",7  I'ed.  Rop.  (',;  Zainhriiio  v.  Rnilway 
Co.,  3S  Id.  4r)l;  and  soe  DfSly.  IJein.  of  Cansos  (.'id.  ed.).  §  7li'. 

20SBaughnian  v.  National  Water  Works  Co.,  4f;  Fed.  Rep.  4;  and 
10 


I  960  GENEUAL    PRINCIPLES.  7i 

alien  plaintiffs  against  corporation  defendants  not  chartered 
by  the  state  in  which  suit  is  brought  is  removable  by  such 
delondants.^^  The-  citizenship  of  parties  which  determines 
the  right  to  remove  a  cause  is  that  of  the  parties  as  persons, 
and  not  an  official  citizenship,  acquired  in  a  representative 
capacity. ^'^"^ 

§  96c.  The  same  — local  prejudice.  Section  639,  subdivision 
3,  of  the  Eevised  Statutes  of  the  United  States,  providing  for  the 
removal  of  causes  on  the  ground  of  local  prejudice  by  either 
plaintiff  or  defendant,  was  repealed  by  tho  act  of  1887-1888, 
which  limits  the  right  of  removal  on  this  ground  to  the  defend- 
ant only.'^^  ]^ut  one  of  several  defendants,  being  a  citizen  of  the 
same  state  as  a  plaintiff,  can  not  remove  a  cause  upon  the  ground 
of  prejudice  and  local  influence  l)etween  himself  and  the  other 
defendants.^^^  The  object  of  allowing  a  defendant  to  remove 
a  controversy  into  the  Circuit  Court  of  the  United  States  is 
to  prevent  the  plaintiff  from  obtaining  any  advantage  against 
him  by  reason  of  prejudice  or  local  influence.  And  unless  such 
prejudice  or  influence  in  favor  of  the  plaintiff  is  alleged  and 
proved,  he  can  not  be  prevented  from  prosecuting  his  suit 
against  all  the  defendants  in  the  court  in  which  he  originally 
brought  it.^^^  A  cause  could  be  removed  on  the  ground  of  local 
prejudice,  under  section  039  (U.  S.  Rev.  Stats.),  only  where  all 
the  parties  to  the  suit  on  one  side  were  citizens  of  a  different 
state  from  those  on  the  other  side.^'^     And  a  similar  construc- 

compare  Overmau  Wheel  Co.  v.  Pope  Mfg.  Co.,  40  id.  577;  Stephens 
V.  St.  Louis,  etc.,  R.  R.  Co.,  47  id.  530. 

209  Sherwood  v.  Newport  News,  etc..  Valley  Co.,  55  Fed.  Rep.  1. 
See,  as  to  removal  of  suit  where  alien  is  a  party,  Desty,  Rem.  of 
Causes  (3d  ed.),  §  95n. 

210  Wilson  V.  Smith,  6G  Fed.  Rep.  81;  Amory  v.  Amory,  95  U.  S. 
187. 

211  Fisli  V.  Henarie,  142  U.  S.  4,1!);  Tulloclv  v.  Webster  County, 
40  Fed.  Rep.  700;  Campbell  v.  Collins,  62  id.  849.  Any  one  of 
several  defendants  may  remove  the  cause.  .Taclvson  v.  Pearson, 
GO  Fed.  Rep.  113;  compare  Gann  v.  Xortlieastern  R.  R.  Co.,  57 
Id.  417. 

2i2Hanri(k    v.    Hanriclv,    1.53   U.    S.   193. 

213  Id.  Removal  of  case  against  a  railroad  company  under  act 
of  1887,  for  local  prejudice.  See  Herndon  v.  Railroad  Co..  70  id. 
398. 

214  Young  V.  Parlior,  132  U.  S.  207;  Rosentlial  v.  Coates,  148  id.  143. 


75  PLACE    OF   TRIAL.  §  96d 

tion  has  been  given  to  the  act  of  1887-1888.215  ^^^^  the  right  of 
removal  extends  not  only  to  cases  where  such  prejudice  would 
affect  the  jury,  but  also  to  cases  in  which  the  decisions  of  the 
judge  as  to  questions  of  law  or  fact  may  be  affected  thereby .^^^ 
A  cause  to  which  an  alien  is  a  party  is  not  removable  under 
the  "local  prejudice"  clause  of  the  act  of  1887-1888.210^ 
And  the  record  upon  removal  for  local  prejudice  must  show  that 
the  amount  in  controversy  exceeds  $2,000,  exclusive  of  interest 
and  costs.217  A  petition  for  the  removal  of  a  cause  on  the 
ground  of  local  prejudice  should  state  the  facts  relied  on  as 
showing  prejudice,  and  should  be  sworn  to  by  at  least  one  of  the 
petitioners,  or  by  some  agent  or  attorney  authorized  Ijy  them.^i* 
It  is  not  sufficient  merely  to  allege  in  tbe  petition  and  affidavit 
that  petitioner  "  has  reason  to  believe,  and  does  believe,"  that 
from  prejudice  and  local  influence  he  will  be  unable  to  obtain 
justice  in  the  state  courts,  but  the  existence  of  prejudice  and 
local  influence  must  be  alleged  as  matter  of  fact.^i® 

§  96d.  The  same  —  federal  questions.  If  a  suit  of  a  civil 
nature,  at  law  or  in  equity,  involves  a  federal  question,  it  may 
be  removed.  But  a  cause  is  not  removable  when  any  doubt 
exists  as  to  whether  a  federal  question  is  presented.^^o  J^^■^^^ 
under  the  act  of  1887-1888  a  cause  can  not  be  removed  as  in- 
volving a  federal  question,  unless  that  fact  appears  by 
the  plaintiff's  own  statement  of  his  casc;^^!  and  a  de- 
ficiency   in    his   statement    in    this   respect    can    not    be    sup- 

21.1  Oann  v.  Northeastern  R.  R.  Co..  ni  Fed.  Rep.  417;  Thompson 
V.  East  Tenn.,  etc.,  R.  R.  Co.,  ."^S  id.  073;  Pike  v.  Floyd,  42  id.  247; 
but  see  Jacksou  v.  Fearson,  00  id.  113;  City  of  Detroit  v.  Detroit 
City  Ry.  Co.,  rA  id.  1;  Wilder  v.  Virginia,  etc.,  Iron  Co.,  4(»  id.  076. 

216  City  of  Detroit  v.  Detroit  City  Ry.  Co.,  54  Fed.  Rep.  1;  Bur- 
gess V.  Seligiiian,  107  U.  S.  33;  followed. 

21011  Colin  v.  Lonisville,  etc.,  R.  R,  Co.,  .'?;>  I'cd.  Roji.  227;  and  soe 

217  Tod    V.    Clovelnnd.    etc.,    R.    R.    Co.,   (in    Fed.    Rep.    145;    Bier- 
AdellMTt  College  V.  Toledo,  etc..  R.  R.  Co.,  47  Fed.  Rep.  8.30. 
l)owcr    V.    Miller,    .30    Neb.    101;    fix    parte    PPiinsylvanla    Co.,    137 
V.  S.  4.-.I. 

218  Mall  V.  Chfittanooua  Agr.  Works.  4S  Fed.  Rep.  ."00;  Sdnvenk 
V.  Strang,  ."".O  id.  20f). 

219  Short  V.  Railway  Co..  '.',?,  Ffd.  Kep.  114;  Collins  v.  Campbell, 
02  Id.  HTiO. 

22riTilu,.  p,ir.]   Mill.  To.  V.  l.arzey.  4f>  F.-d.  Rep.  2S0:  id.  202. 
221  C^aples   V.   Te.xas,   etc.,    R.   R.   Co..   07    Fed.    Kep.   0;   Ilaggin   V. 
Lewis,  00  id.  199. 


S  ;iGe  GENEUAI.    I'KINCIl'LKS.  76 

c 

plied  by  allogations  in  the  petition  for  removal,  or 
in  subsequent  pleadings  in  the  ease.^-^  A  petition  which  fails 
to  allege  any  facts  from  which  the  court  nuiy  see  that  a  federal 
question  does  actually  arise,  is  insufficient.^^  Whenever  it  is 
soiight  to  remove  a  suit  on  the  ground  that  it  is  one  arising  under 
the  laws  of  the  United  States,  it  must  appear  from  the  ])etitiou 
for  removal  and  pleadings  that  there  is  a  question  actually  in- 
volved in  the  suit  depending  for  its  detemiination  upon  a  cor- 
rect construction  of  a  law  of  the  United  States,  and  the  facts 
averred  in  the  pleadings  or  in  the  petition  must  show  what  the 
question  is,  and  how  it  will  arise.^-'*  Corporations  of  the  United 
States,  created  by  and  organized  under  acts  of  Congress,  are 
entitled  to  remove  to  the  federal  courts  suits  against  them  in 
the  state  courts,  as  "  arising  under  the  laws  of  the  United 
States."228 

§  96e.  The  same  —  separable  controversy.  The  act  of  1887- 
1888  limits  the  right  of  the  removal  of  suits  on  the  ground  of  a 
Beparable  controversy  to  the  defendant  who  is  a  citizen  of  a  state 
other  than  that  in  which  the  suit  is  brought.  And  a  defendant 
can  not  remove  from  a  state  to  a  federal  court  a  separable  con- 
troversy between  the  plaintiff  and  himself,  unless  he  is  a  non- 
resident of  the  state  where  the  suit  is  brought.^^^  Whether 
there  is  a  separahle  controversy  warranting  a  removal  is  to  be 
determined  by  the  condition  of  the  record  in  the  state  court  at 
the  time  of  filing  the  petition  for  removal,  unless  it  is  alleged 
that  the  defendants  wrongfully  joined  for  the  purpose  of  pre- 

222  Cable  Co.  v.  Alabama,  1.55  U.  S.  487;  Land  Co.  v.  Brown, 
Id.  489;  State  v.  Union  &  Planters'  Bank.  1.52  id.  4,54;  State  of 
Florida  v.   Phosphate  Co.,  74  Fed.  Rep.  578. 

223  Los  Angeles,  etc.,  Milling  Co.  v.  Hoff,  48  Fed.  Rep.  340;  and 
see  Fitzgerald  v.  Missouri  Pac.  R.  R.  Co.,  45  id.  812.  See,  as  to 
cases  involving  federal  questions,  Desty,  Rem.  of  Causes,  §§  94- 
94c. 

224  Walker  v.  Rirhards,  .55  Fed.  Rop.  129;  and  see  State  v.  South- 
ern Par-ific  Co.,  23  Orcg.  424. 

225  Pacific  Railroad  Removal  Cases,  115  U.  S.  1;  Butler  v.  National 
Home,  144  id.  G4;  Supreme  Lodge,  etc.  v.  Hill,  76  Fed.  Rep.  468. 
But  this  rule  does  not  apply  to  corporations  organized  under  the 
laws  of  a  territory,  and  upon  which,  after  their  organization, 
certain  rights  and  privileges  are  conferred  by  act  of  Congress. 
Conlon  V.  Oregon,  etc.,  Ry.  Co.,  21  Oreg.  462;  and  see  Same  v. 
Same.  2?,  id.  .500. 

226  Thurber  v.   Miller,  67  Fed.   Rep.  372. 


-J-^  PLACE    OF   TRIAL.  |  96f 

venting  a  removal.^  There  are  no  separable  controversies 
within  the  meaning  of  the  statute  unless  the  case  as  made  by 
the  complaint  embraces  controversies  wliich  are  separate.  The 
cause  of  action  is  not  made  separable  because  one  defendant  seta 
up  a  separate  defense  peculiar  to  himself,  which  may  defeat  the 
entire  cause  of  action.^^s  The  right  to  remove  a  separate  con- 
troversy is  now  restricted  to  citizens  of  different  states,  and  does 
not  extend  to  aliens.^^ 

§  96f.  The  same  — time  of  application.  Under  the  act  of 
1887-1888,  a  cause  may  be  removed  to  a  federal  court  on  the 
ground  of  local  prejudice  at  any  time  before  the  first  trial  thereof 
is  actually  held.^^o  But  in  all  other  cases  the  petition  is  re- 
quired to  be  filed  "at  the  time,  or  at  any  time  before  the 
defendant  is  required  by  the  laws  of  the  state,  or  the  rule  of 
the  state  court  in  which  the  suit  is  brought,  to  answer  or  plead 
to  the  declaration  or  complaint  of  the  plaintiff."  ^^  It  is  im- 
perative that  the  application  to  remove  be  made  when  the 
answer  is  due;^''^  and  the  court  possesses  no  discretionary  power 
to  enlarge  the  time.^^^  A  case  is  held  not  to  be  removable 
after  the  time  fixed  by  the  state  statute  or  the  rules  of  the 
state  court  for  the  defendant  to  answer  or  plead,  even  though 
the  time  has  been  extended  by  stipulation  and  by   order  of 

227  Louisville,  etc.,  R.  R.  Co.  v.  Wangelin,  132  V.  S.  599;  and  see 
Hazard  v.  Robinson,  21  Fed.  Rep.  193. 

228 />;  re  .Tarneoke  Ditoli,  09  Fed.  Rpp.  IGl;  Rosenthal  v.  Coates, 
148  U.  S.  142;  Arrowsniith  v.  Nashville,  etc..  R.  R.  Co.,  57  Fed, 
Rep.  1<V>;  see  Watson  v.  Railroad  Co.,  73  id.  1. 

229  Woodruni  v.  Clay,  33  Fed.  Rep.  897;  compare  Insurance  Co. 
V.  Delaware  Mut.  Ins.  Co.,  50  id.  243.  A  member  of  an  Indian  tribe 
can  not  romove  a  cause  to  a  federal  court  unless  a  federal  question 
is  involved.  Fanl  v.  Chilsoquie,  70  Fed.  Rep.  401;  Tonessee  v.  Bank, 
152  T'.  S.  4.54. 

230(-Mty  of  Detroit  v.  Detroit  City  R.  R.  Co.,  54  Fed.  Rep.  1; 
Flsk  v.  Ilenarle,  142  U.  S.  4.'9;  and  see  Lookout  Mt.  R.  R.  Co.  v. 
Houston,  P,2  Fed.  Rep.  711;  Davis  v.  Chiiafxo,  etc.,  R.  R.  Co..  47 
id.  307. 

231  l»ixon  v.  West.  T'n.  'I'el.  Co.,  3.S  Fed.  Rep.  377;  GerliiiR  v. 
Baltimore,  etc.,  R.  R.  Co..  l.-.l  It.  S.  073;  see  Cookerly  v.  Railroad 
Co.,  70  Fed.  Rep.  277;  Fidelity  Tnist,  etc.,  Co.  v.  Newport  News, 
etc.,  Co.,  Id.  4^(3;  Bridge  Corporation  v.  Lumber  Co.,  71  id.  22o', 
Collins  v.  Stott,  70  id.  013. 

2.12  1!  ail  road  Co.  v.  Dan>rhtr>-.  13.S  TT.  S.  298. 

238  DoUKlierty  v.  West.  L'n.  Tel.  Co.,  01  Fed.  Rep.  138. 


§  ilOsX  GENERAL  PRINCIPLES.  78 

court.-"'"*  li'  one  of  several  derendaiits  in  a  suit  on  a  joint 
cause  of  action  loses  his  right  to  remove  the  action  by  failing 
to  make  the  application  in  time,  the  right  is  lost  as  to  all.^° 
The  objection  that  the  right  of  removal  from  the  state  court 
was  not  asserted  within  the  time  required  by  the  act  of  1887- 
1888,  is  an  objection  which  may  be  waived;^^*^  and,  although 
the  petition  for  removal  is  not  filed  until  after  a  demurrer  is 
interposed  in  the  state  court,  if  no  motion  to  remand  on  that 
ground  is  made  in  the  Circuit  Court,  the  objection  is  waived, 
and  can  not  be  made  on  appeal.^'^ 

§  96g.  The  same  —  who  may  remove  —  party  defendant.         A 

party  defendant  to  an  action,  within  the  meaning  of  the  Re- 
moval Act,  is  one  who  is  named  as  such,  and  appears  in  the 
record  as  a  defendant,  at  the  time  the  right  of  removal  exists. "^^ 
Failure  on  the  part  of  one  of  the  defendants  to  join  in  the 
petition  is  fatal  to  the  right  of  removal  when  there  is  no 
separable  controversy.^^^  But  merely  nominal  or  formal  de- 
fendants need  not  join  in  the  petition,  where  they  have  not 
appeared,  and  where  there  is  no  issue  between  them  and  the 
plaintiff  upon  which  a  verdict  could  have   been   rendered.-^^ 

234  Spangler  v.  Raih'oad  Co.,  42  Fed.  Rep.  305;  Ruby  Canyon 
Gold  Min.  Co.  v.  Hunter,  GO  id.  .305;  contra,  Rycroft  v.  Green,  49  id, 
177;  Bank  of  Greenville  v.  Aetna  Ins.  Co.,  53  id.  IGl;  Price  v. 
Lehigh  Valley  R.  R.  Co.,  65  id.  825;  and  see  Turner  v.  Railroad  Co., 
55  id.  689.  Stipulations  between  the  parties,  allowing  defendant 
further  time  to  answer,  are  ineffectual  to  extend  the  time  within 
which  to  file  the  petition  for  removal.  Martin  v.  Carter,  48  id.  596; 
and  see  Rock  Island  Nat.  Bank  v.  Lumber  Co.,  52  id.  897;  Schipper 
V.  Cordage  Co.,  72  id.  803;  but  compare  Allmark  v.  Steamship  Co., 
76  id.  614. 

235  Fletcher  v.  Hamlet,  116  U.  S.  408;  Rogers  v.  Van  Nortwick, 
45  Fed.  Rep.  513. 

236  See  Ti-ust  Co.  v.  McGeorge,  151  U.  S.  129;  Railway  Co.  v.  Cox, 
145  id.  .593;  Railway  Co.  v.  McBride,  141  id.  127. 

237  Newman  v.  Scliweriu,  61  Fed.  Rep.  86.5. 

238  Walker  v.  Richards,  55  Fed.  Rep.  129. 

239  Thompson  v.  Chicago,  etc.,  R.  R.  Co.,  60  Fed.  Rep.  773;  Tele- 
graph Co.  V.  Brown,  .32  id.  337;  Plymouth,  etc.,  Min.  Co.  v.  Amador, 
etc..  Canal  Co.,  118  U.  S.  264. 

240  Shattuck  v.  North  British,  etc.,  Ins.  Co.,  58  Fed.  Rep.  G09. 
Removal  of  suit  brought  in  state  court  against  an  unnaturalized 
Indian.    See  Paul  v.  Chilsoquie,  70  Fed.  Rep.  420. 


79  PLACE  OF  TRIAL.  §§  96h-96j 

§  96h.  The  same  —  notice  of  application.  Parties  to  be  affected 
by  the  removal  should  have  reasonable  notice  of  the  application 
for  removal,  and  an  opportunity  to  contest  it.  And  when 
notice  to  the  party  interested  is  practicable,  the  court  should 
not,  in  any  case,  rest  its  judgment  on  a  mere  ex  parte  show- 
ing.^^  It  is,  however,  held  that,  under  the  ''prejudice  and 
local  influence"  clause  of  the  act  of  1887-1888,  notice  to  the 
adverse  party  of  a  motion  for  removal  is  not  jurisdictional, 
and  that  such  motion  may  be  made  upon  ex  parte  hearing. 
But  the  better,  as  well  as  the  safer,  practice  would  ordinarily 
be  for  the  court  to  decline  to  hear  the  application  until  proper 
notice  of  the  hearing  had  been  given.^'*^ 

§  961.  The  same  —  when  removal  is  effected.  A  removal  is 
not  effected  under  the  act  of  1887-1888,  by  a  mere  entry-  in  a 
federal  court  finding  the  petition,  affidavit,  and  bond  for  re- 
moval sufficient.  And  the  proper  mode  of  procedttre  is  to  obtain 
an  order  from  the  federal  court  for  the  removal,  file  that  order 
in  the  state  court,  and  take  from  it  a  transcript  and  file  it  in  the 
federal  court.^^^ 

§  96j.  The  same  —  remand  of  cause.  When  it  is  settled  that 
the  jurisdiction  of  the  federal  court  in  a  removal  cause  is  doubt- 
ful, all  doubt  as  to  what  the  court  should  do  is  dispelled,  and  the 
cause  will  be  remanded. ^^  Thus,  a  cause  removed  to  a  federal 
court  on  the  ground  of  diverse  citizenship  will  be  remanded  when 
there  is  doubt  as  to  whether  the  defendant  is  in  fact  a  citizen  of 
a  different  state  from  the  defendant.^  Whenever  on  the  face 
of  the  record  a  clear  want  of  jurisdiction,  either  of  the  parties  or 
of  the  suljject-matter,  is  affirmatively  shown,  it  is  tlie  duty  of 
the  federal  court  to  remand  of  its  own  motion.^^®  Under  the 
act  of  1887-1888,  no  appeal  or  writ  of  error  lies  to  the  Supreme 
Court  from  a  decision  of  a  Circuit  Court  remanding  a  cause  to  a 
state  court  from  which   the  cause  had  been  removed.^^     An 

241  Schwenk  v.  Slrnnjj,  .^>9  Fe<l.  Rep.  209. 

242  Reeves  v.  Coruinjr,  rA  Fed.  Rep.  774. 

243  Pennsylvania  Co.  v.  licnder.  148  TJ.  S.  2r).^>;  see  Wills  v.  Balti- 
more, etc.,  R.  R.  (>}.  <;.'»  Fe<l.  Itep.  '..".2;  Sli<'i)herd  v.  Brndstreet  Co., 
Id.  142. 

244  Fltze«'ra]d  v.   Missouri  Tac  Ry.  Co..  4.">  Fed.   Rep.  812. 
24.'.  ilntrlieson  v.  Rl«i»(>(',  .W  Fed.  Reii.  320. 

240  State  v.  Tolli'sion   Clui>,  ;'.'{   I'ed.   Rep.   18. 
247Cl)lcago,  etc.,  Ry.  Co.  v.  Gray,  131  U.  S.  396. 


§§  lOG,   107  GENIOUAL    I'lUNUU'LES.  80 

order  muaiuling  a  cause  I'loiu  the  Circuit  Court  to  the  state 
court,  I'roni  wliieh  it  was  removed,  is  uot  a  iinal  judgment  or 
decree,  and  the  Supreme  Court  has  no  jurisdiction  to  review 
j|-_a48  r^^i^Q  statute  (act  of  1887-1888)  e.\})reasly  provides  that  an 
order  to  remand  can  not  be  reviewed  on  appeal  or  writ  oi'  error  to 
the  Supreme  Court.  And  this  applies,  not  only  to  removals  on 
account  of  prejudice  or  local  iniluenee,  but  to  cases  removed 
on  other  grounds.^'*^ 

§  106.  Entry  of  appearance. 

Form  No.   14. 
[Title  of  State  Court  and  Cause.] 
The  said  defendant,  A.  B.,  now  comes,  and  by  C.  D.,  his 
attorney,  enters  his  appearance  in  said  action,  and  herewith 
also  files  his  petition  for  the  removal  of  said  cause  into  the  Cir- 
cuit Court  of  the  United  States,  in  and  for  the 

district  of  the  state  of 

C.  D., 
Attorney  for  Defendant. 

§  107.  Petition  for  transfer  from  state  court  to  a  Circuit  Court 
of  the  United  States. 

Form  No.   15. 
[Title  of  State  Court  and  Cause.] 
To  said  Superior  Court: 

Your  petitioner,  C.  D.,  respectfully  shows  that  he  is  the  de- 
fendant in  the  above-entitled  suit;  that  said  suit  was  brought  by 

said  plaintiff,  A.  B.,  on  or  about  the day  of , 

18.  .,  in  this  court;  that  the  said  plaintiff  at  the  time  of  the 
commencement  of  said  suit  was,  and  still  is,  a  citizen  of  this  state, 
and  your  petitioner  then  was,  and  still  is,  a  citizen  of  the  state 
of 

Your  petitioner  furtlier  represents  tJiat  said  action  above  en- 
titled was  brought  by  the  said  plaintiff  for  the  purpose  of  [here 

2^8  Richmond,  etc..  R.  R.  Co.  v.  Thonion,  1.'54  IT.  S.  45;  Cliica$?o, 
etc.,  R.  R.  Co.  V.  Roberts,  Ml  id.  690;  Joy  v.  Adelbert  Gollef^o,  146 
id.  3o5. 

2-10  Morey  v.  Lockhart,  123  U.  S.  56.  As  to  remanding  cause 
generally,  and  practice  thereon,  see  Desty,  Rem.  of  Causes  (3d  ed.), 
§§  111-llln.  A  second  petition  for  removal  upon  the  same  ground 
set  up  on  a  prior  removal  can  not  be  had,  when,  on  the  first  re- 
moval, the  case  was  remanded  for  failnro  to  file  a  copy  of  the 
record  in  due  time.    Smith  v.  Insurance  Co.,  73  Fed.  Rep.  513. 


81  PLACE    OF   TRIAL.  §    107a 

briefly  state  the  nature  of  and  subject-matter  of  the  suit,  and 
the  relief  asked],  and  that  the  matter  in  dispute  in  said  action 
exceeds  the  sum  and  value  of  two  thousand  dollars,  exclusive  of 
interest  and  costs. 

Your  petitioner  further  shows  that  he  has  herewith  filed  his 
appearance  in  said  action,  and  offers  herewith  his  bond  with 
good  and  sufficient  surety  as  required  by  section  3  of  the  act  of 
Congress  of  March  3,  1887,  and  that  your  petitioner  desires  to 
remove  said  cause  above  entitled  into  the  Circuit  Court  of  the 

United  States  for  the  district  of ,  pursuant  to  said 

statute. 

Your  petitioner,  therefore,  prays  that  said  bond  may  be  ac- 
cepted as  good  and  sufficient,  according  to  said  statute,  and  that 
the  said  suit  may  be  removed  into  the  next  Circuit  Court  of 
the  United  States  in  and  for  said  district  of ,  pur- 
suant to  said  statute  in  such  case  made  and  provided,  and  that 
no  further  proceeding  be  had  therein  in  this  court. 

And  your  petitioner  will  ever  pray. 

> 

Attorney  for  Plaintiff. 

State  of ,  )^. 

County  of ) 

C.  D.,  being  first  duly  sworn,  says  that  he  is  the  petitioner 
above  named,  that  he  has  read  the  foregoing  petition,  and  knows 
the  contents  thereof,  and  that  each  and  every  of  the  matters  and 
things  therein  stated  are  true. 

[Jl-rat.]  [Signature.]  250 

«  107a.  The  same  —  on  ground  of  prejudice  or  local  influence 
under  act  of  1887. 

form  No.   l6. 

In'  the  Circuit  Court  of  the  United  States  for  the 

District  of 

[Title  of  Cause.] 
To  the  Honorable,  the  Judges  of  the   Circuit  Court  of  the 

Uniteil  States  for  the  District  of : 

Your  petitioner,  A.  B.,  respectfully  shows  that  the  above- 
entitled  suit  is  now  ponding  for  triiil  in  the Court 

sf-f"  The  statute  dnrs  nof  ('xpr<>8sly  rcMuiro  the  petition  to  be 
vorlflcd,  nor  that  any  affidavit  should  he  fllrd.  thnu'.'Ii  tho  usual 
practice,  and  certainly  the  better  praftloc,  Is  to  verify  the  petition. 
If  the  suit  is  for  a  money  demand,  tlie  declaration  or  complaint 

Vol.  T— 11 


§  107a  GENERAL    IMilNClPLES.  82 

of  county,  stale  of  ,  and  has  not 

yet  been  tried,  aaid  that  your  petitioner  desires  to  remove  said 
suit  into  tlie  Circuit  Court  of  the  United  States  for  the  district 
of 

That  your  petitioner  is  the  defendant  [or  one  of  the  defend- 
ants] in  said  suit,and  that  the  matter  in  dispute  tlierein  exceeds 
the  sum  of  two  thousand  dollars,  exclusive  of  interest  and  costs. 

Your  petitioner  further  shows  that  there  is,  and  was  at  the 
time  said  suit  was  brought,  a  controversy  therein  between  your 
petitioner,  wlio  avere  that  he  was,  at  the  time  said  suit  was 

brought,  and  still  is,  a  citizen  of  the  state  of ,  and 

the  said  plaintiff,  who  was  then  and  still  is  a  citizen  of  the  state 

of    ,   in   Avhich   last-named    state   said   suit    was 

brought;  and  that  both  your  petitioner  and  the  said  plaintiff 
are  actually  interested  in  said  controversy. 

That  said  suit  was  brought  for  the  purpose  of  [briefly  stating 
the  nature  of  the  suit  and  the  relief  asked]. 

Your  petitioner  further  states  that  he  has  filed  herewith  an 
affidavit,  that  it  may  be  made  to  appear  to  the  said  Circuit  Court 
that  by  reason  of  the  existence  of  prejudice  and  local  influence 
against  your  petitioner  he  will  not  be  able  to  obtain  justice  in 
the  said  state  court,  or  in  any  other  state  court  to  which  your 

petitioner  may,  nnder  the  laws  of  the  state  of  , 

have  the  right,  on  account  of  such  prejudice  and  local  influence^ 
to  remove  said  cause. 

Your  petitioner,  therefore,  prays  that  the  said  affidavit  may 
be  accepted  as  good  and  sufficient,  and  that  the  said  suit  may  be 
removed  into  the  said  Circuit  Court  of  the  United  States  for  the 
district  of aforesaid. 


Attorney  for  Petitioner. 

of  the  plaintiff  and  the  statement  in  the  verified  petition  for  re- 
moval would  bo  ordinarily  sufficient  to  satisfy  the  court  as  to  the 
amount  or  value  in  dispute,  but  where  the  suit  is  not  upon  a  money 
demand,  or  for  damages,  the  better  course  would  be  to  present 
a  distinct  affidavit  of  value. 


83  PLACE    OF   TRIAL.  §§  107b,  107c 

§   107b.  Affidavit  of  prejudice  or  local  influence  to  accompany 
the  foregoing  petition. 

Form  No.   17. 
Ix  THE  Circuit  Court   of  the  United   States   for  the 

District  of 

[Title  of  Cause.] 

United  States  of  America,  ) 

\  ss.: 
....  District  of ) 

1,  A.  B.,  being  duly  sworn,  say  that  I  am  the  defendant 
[or  one  of  the  defendants]  in  the  above-entitled  cause,  and 
that  the  existence  of  prejudice  and  local  influence  as  alleged 
in  the  foregoing  petition  will  sufficiently  appear  to  the  court 
from  the  following  statement  of  facts:  [State  the  facts  relied 
on  as  showing  prejudice  and  local  influence.]  That,  by  reason 
of  the  existence  of  said  prejudice  and  local  influence,  I  shall 
not  be  able  to  obtain  justice  in  said  state  court  or  in  any  other 
state  court  to  which  the  said  defendant  may,  under  the  laws 

of  said  state  of  ,  have  the  right,  on  account  of 

such  prejudice  and  local  influence,  to  remove  said  cause. 

[Jurat.]  [Signature. ]^^ 

§   107c.  Bond  on  removal  under  Act  of   1887. 
Form  No.   j8. 

Know  all  men  by  these  presents,  that  I,   ,  as 

principal,  and    ,  as  surety,  are  held  and  firmly 

bound  unto   in  the  penal  sum  of   

dollars,  for  the  payment  whereof  well   and  truly  to  be  made 

unto  tlie  said    liis  heirs,  and  assigns,  we  bind 

ourselves,   Dur  heirs,  representatives  and   assigns,  jointly  and 
severally,  firmly  by  these  presents. 

S'il  Sit'c.  ns  to  sufTu-iciuy  of  pot  it  inn  nnd  nfTidnvit.  §  107,  ante. 
It  Is  held  that  Ihf  aflidavit  in  suppoi't  of  the  petition  need  not 
BtMte  that  the  facts  ai'f  sworn  to  of  the  personal  knowledge  of  the 
afllant,  but  it  is  Hufflcicnt  tliat  they  are  of  his  opinion  and  belief, 
If  he  Is  a  rredlldc  person,  and  the  farts  on  which  such  belief  is 
based  arc  piven.  Detroit  v.  Detroit  City  Ry.  Co.,  54  Fed.  Rep.  1; 
see  Collins  v.  C;inipl>ell,  02  id.  S.'»0.  Tlic  prejndice  or  local  inflnonce 
mtiHt  1)8  nindn  to  npj)par  to  tlic  Circuit  Court.  Such  court  must  be 
h'trnlly  flaiisfi'd,  by  proof  sullalilc  to  tlic  nature  of  the  case,  of  the 
fnith  of  llic  nllpfrntion  tliat,  by  reason  of  thnsc  causes,  tlip  defend- 
nnt  will  not  lie  .nble  to  oiifain  justice  in  llie  stnte  courts.  Fisk 
V.  Htnarie,  142  U.  S.  459,  408;  In  re  Tcnna.  Co.,  137  Id.  451. 


§  107d  GENERAL   PRINCIPLES.  84 

Nevertheless,  upon  tliose  conditions:  The  said 

having   petitioned   the    court   of    

county,  state  of   ,  for  the  removal  of  a  certain 

cause  therein  ponding,  wherein   is  plaintiff,  and 

is  defendant,  to  the  Circuit  Court  of  the  United 

States  in  and  for  the  district  of 

Now,  if  the  said   ,  your  petitioner,  shall  enter 

in  the  said  court  of  the  United  States,  on  the  first  day  of  its 
next  session,  a  copy  of  the  record  in  said  suit,  and  shall  well 
and  truly  pay  all  costs  that  may  be  awarded  by  said  Circuit 
Court  of  the  United  States,  if  such  court  shall  hold  that  said 
suit  was  wTongfully  or  improperly  removed  thereto  then  this 
obligation  shall  be  void;  otherwise  it  shall  remain  in  full  force 
and  virtue. 

Witness  our  hands  and  seals,  etc. 

[L.    S.] 

[L.    S.] 

State  of ,  ( 

>  ss.: 
County  of ) 

I,   ,  of  said  county,  the  surety  named  in  the 

foregoing  bond,  being  duly  sworn,   deposes  and  says:    I   am 

a  resident  of  the  state  of    ,  and  am  a  property 

holder  therein;  that  I  am  worth  the  sum  of  two  thousand 
dollars,  over  and  above  ail  my  debts  and  liabilities,  and  ex- 
clusive of  property  by  law  exempt  from  sale  on  execution. 

[Jurat.]  [Signature.]  ^^ 

§  107d.  Petition  for  removal  on  ground  of  citizenship  under 
act  of  1887. 

Form  No.   iQ. 
[Title  of  State  Court  and  Cause.] 
To  said  Court: 

Your  petitioner  respectfully  shows  to  this  honorable  court 
that  he  is  the  defendant  in  the  above-entitled  suit;  that  he 
is  a  nonresident  of  the  state  in  which  said  suit  was  brought, 

252  The  above  form  of  bond  is  in  substance  from  "  Dillon's  Re- 
moval of  Causes "  (.5th  ed.),  212.  The  statute  is  sufficiently  com- 
plied with  by  the  filing  of  a  bond  signed  by  two  responsible  persons, 
tliough  not  signed  Ijy  the  iiarty  seeking  removal.  People's  Banlc  v. 
Aetna  Ins.  Co.,  .5.3  Fed.  Rep.  161.  And  the  omission  of  the  seal 
to  the  surety's  signature  is  but  a  formal  defect,   which   may  be 


85  PLACE    OF   TKIAL.  §  107e 

and  was,  at  the  time  of  the  commencement  of  this  suit,  and 
still  is,  a  citizen  of  the  state  of 

That  the  said  suit  is  of  a  civil  nature  [briefly  stating  its 
nature  and  the  relief  asked];  and  that  the  matte^r  and  amount 
in  dispute  in  the  said  suit  exceeds  the  sum  or  value  of  two 
thousand  dollars,  exclusive  of  interest  and  costs. 

That  the  controversy  in  said  suit  is  wholly  between  citizens 
of  different  states,  to- wit:  Between  your  said  petitioner,  who, 
as  aforesaid,  was,  at  the  time  of  the  commencement  of  this 

suit,  and  still  is,  a  citizen  of  the  state  of   ,  and 

the  said  plaintiff,  who  was  then,  and  still  is,  a  citizen  of  the 
state  of  * 

And  your  petitioner  offers  herewith  a  bond,  with  good  and 
sufficient  surety,  for  his  entering  in  said  Circuit  Court  of  the 
United  States,  on  the  first  day  of  its  next  session,  a  copy  of  the 
record  in  this  suit,  and  for  the  payment  of  all  costs  that  may 
be  awarded  by  said  Circuit  Court,  if  said  court  shall  hold  that 
this  suit  was  wrongfully  or  improperly  removed  thereto. 

And  your  petitioner  prays  this  honorable  court  to  proceed  no 
further  in  said  cause,  except  to  make  the  order  of  removal  now 
prayed  for  and  required  by  law,  and  to  accept  the  said  surety 
and  Ijond,  and  to  cause  the  record  herein  to  be  removed  into 
the  said  Circuit  Court  of  the  United  States  in  and  for  the 
district  of  ,  and  your  petitioner  will  ever  pray. 


Attorney  for  Petitioners. 
[Veeification.] 

8  107e.  The  same.  "Where  the  ground  of  removal  is  that  the 
suit  is  one  "  arising  under  the  Constitution  and  laws  of  the 
United  States,  or  treaties  made  under  their  authority,"  follow 
the  above  form  down  to  the  star  (*),  and  then  insert  the  fol- 
lowing: "  Your  petitioner  further  shows  that  said  suit  is  one 
arising  under  the  laws  [or  Constitution,  or  treaties,  as  the  case 
may  bo]  of  the  Unitofl  States,  in  this:  [TTere  state  the  facts 
showing  that  a  federal  (pu'stion  nocossary  to  a  proper  decision 
of  the  case  is  involved],  nftcr  wbifh  follow  above  form  to  the 
conclusion.     Tn  this  case  the  citizenship  of  the  parties  is  not 

curorl  hy  amrnflniont.  Ovorman  Whcol  Co.  v.  Pope  IMfjr.  Co.,  46 
Fffl.  T{ff>.  .'.77.  I'ailiin*  of  rniiioval  l..)ti<l  to  state  a  i>ciial  sum  is  not 
matorinl  on  a  motion  to  remand.  Johnson  v.  Manufacturing  Co., 
70  Fed.  Hep.  016. 


§  107f  GENERAL   PKINCIPLES.  86 

necessary  to  be  stated,  but  sucb  slaU'iiu'iit  can  do  no  harm; 
and  if  it  constitutes  an  additional  ground  ior  removal,  it  may 
be  also  relied  upon. 

The  petition  lor  a  removal  on  the  ground  that  the  parties 
are  citizens  of  dill'erent  states,  must  show  that  such  ground  of 
removal  existed  both  at  the  time  of  the  commencement  of  the 
action  and  at  the  time  of  the  application  for  removal.  A  peti- 
tion which  only  alleges  that  the  defendant  is,  and  always  has 
been,  a  citizen  of  California,  and  that  the  i)laintilf  is  a  citizen 
of  Missouri,  is  insufficient.  The  citizenship  of  tlic  parties, 
under  such  circumstances,  is  a  judicial  fact,  and  must  be  alleged 
in  the  petition.  If  such  allegations  are  not  made,  whether  the 
petition  may  be  amended  in  the  Circuit  Court  so  as  to  show 
them,  quaere.  If  the  power  to  allow  such  amendments  be  con- 
ceded, it  is  not  a  matter  which  the  party  removing  can  demand 
as  a  legal  right,  but  only  a  matter  for  the  exercise  of  a  sound 
discretion  by  the  court.  Such  an  amendment  should  not  be 
allowed  where,  after  an  amendment  of  the  petition  in  the 
Circuit  Court,  the  record  in  each  court  would  show  upon  its 
face  Jurisdiction  which  would  authorize  it  to  proceed  to  tinal 
judgment.^^ 

§  107f.  The  same  —  allegation  as  to  citizenship.  An  aver- 
ment of  residence  is  not  equivalent  to  an  averment  of  citizen- 
ship under  the  Removal  of  Causes  Acts.^^*  An  allegation 
showing  diverse  "  residence  "  is  not  equivalent  to  an  allegation 
of  adverse  "  citizenship,"  and  is  insufficient  to  show  federal 
jurisdietion.2^^  So,  diversity  of  citizenship  must  be  shown  to 
exist  at  the  commencement  of  the  action,  and  also  at  the  time 
of  removal,  and  hence,  when  a  party  dies,  tlie  substitution  of 
an  administrator  having  the  requisite  citizenship  does  not  make 
the  case  removable. ^^^  When  the  petition  for  removal  shows 
that  the  defendant  is  a  corporation  of  another  state,  it  need 
not  allege  that  it  is  a  nonresident  of  the  state  in  Avliich  the 

253  McNaiiirhtoTi  v.  S.  P.  C.  R.  R.  Co.,  2  West  Coast  Rep.  C,C,2. 

254  Grand  Trunk  Ry.  Co.  v.  Twitelioll,  m  Fed.  Rep.  727;  South- 
west ( rn  Telegraph  Co.  v.   Robinson,  48  id.  709. 

255  renna.  Co.  v.  Render,  148  IT.  S.  255. 

250  Crand  Trunlv  Ry.  Co.  v.  Twitchell,  .59  Fed.  Rep.  727.  Amend- 
ments to  the  record  for  the  piu-pose  of  showing  diverse  citizenship 
can  not  be  permitted  in  the  Cii-cuit  Court  of  Appeals.    Id. 


87  PLACE    01-    TRIAL.  §§  116,  117 

suit  is  brought,  and  of  which  the  plaintiff  is  a  citizen.^^  So, 
a  petition  which  shows  that  the  defendant  is  a  British  corpora- 
tion, need  not  allege  negatively  that  it  is  not  a  citizen  or  resi- 
dent of  the  state  in  which  suit  is  brought,  though  it  have  an 
office  and  does  business  in  such  state. ^^* 

§  116.  Notice  of  motion  for  removal. 
Form  No.  20. 

[Title  of  State  Court  and  Cause.] 

To ,  plaintiff's  attorney: 

Take  notice,  that  upon  the  petition  and  appearance  of  the 
defendant,  of  which  a  copy  is  hereto  annexed,  and  which  were 
on,  etc.  [or  upon  the  petition,  a  copy  of  which  is  hereto  an- 
nexed, and  which,  together  with  the  petitioner's  appearance 
herein  already  sen'ed  on  you,  was,  on,  etc.],  filed  in  this  court, 
and  upon  the  bond  of  the  petitioner  and  his  sureties  [or  the 
bond  on  behalf  of  the  petitioner],  a  copy  of  which  is  also 

annexed,  defendant  will,  on ,  at ,  at 

the  hour  of ,  move  the  court  that  said  cause  be 

removed  from  this  court  to  the  Circuit  Court  of  the  United 

States  for  the  district  of 

[Date.]  [Signature.]  ^^o 

§   117.  Order  to  show  cause. 

Form  No.  2i. 
[Title  of  State  Court  and  Cause.] 

To ,  plaintiff's  attorney: 

The  defendant  having  this  day  entered  an  appearance  in  this 
cause,  and  at  the  same  time  filed  a  petition  praying  for  the  re- 

257  Wilcox,  etf.,  fluano  Co.  v.  riioonix  Ins.  Co..  W  Fed.  Roi).  929; 
Shattiuk  V.  Insurance  Co.,  r)8  id.  fi09;  7  C.  C.  A.  JW!. 

258  Sliattuck  v.  Insurance  Co.,  58  Fed.  Ilep.  (509.  The  alleKation 
that  a  defendant  is  "a  company  duly  cliarlered  and  incorporated 
under  tlie  liiws  of  Great  Hritain  "  is  n  sutticient  statement  of  the 
citizenship  of  such  corporation  for  tiie  puri)oses  of  removal  to  a 
federal  court.  I^tllcrts(»n  v.  Sc<)ttisli,  elc,  Ins.  Co.,  (58  Fed.  Kep. 
17:5. 

2.''t"  Tlie  iilaintlffs  may  opi)osG  the  motion  upon  the  nuivinj:  paiiers, 
or  with  new  allldavitH  also,  but  after  the  order  jjrantiuK  the  petition 
has  been  made  the  Jurisdiction  of  the  state  court  is  Koue,  and  that 
court  Ims  no  jtower  to  vacate  its  order.  Jjivermore  v.  .TenlvS,  11 
How.  Vr.  470.  Tlie  apiiiicalion  sliould  he  on  notice,  or  an  order  to 
show  c.Ttise.  nislirow  v.  DriKKS.  8  Ahh.  Pr.  .^O.^t,  n.;  but  compare 
IlliuH  V.  New  Yoric  &  New  Haven  U.  R.  Co.,  13  N.  Y.  597,  where  an 
order  was  made  c.v  parte.    See  §  9011,  ante. 


§§  118,  119  OEXEllAL    PRINCIPLES.  88 

moval  ol'  this  action  to  tho  Circuit  Court  of  the  United  States 
for  tho  district  of  California,  pursuant  to  the  act  of  Congress  of 
the  rnited  States  in  such  case  made  and  provided,  and  offered 
the  surety  as  therein  provided  by  a  bond  now  filed,  it  is  ordered 

that  the  jilaintiil'  show  cause  on ,  the day 

of next,  l)efore  this  court,  at  the  opening  of  court 

on  that  day,  or  as  soon  thereafter  as  practicable,  why  the  prayer 
of  said  petition  should  not  be  granted,  and  in  the  meantime 
and  until  the  hearing  of  said  petition,  let  all  proceedings  on 
the  part  of  the  plaintiff  herein  be  stayed. 

E.  D., 
[Date.]  District  Judge. 

§   118.   Order  for  removal  of  cause  to  TTnited  States  Court. 

PoKDl    No.    22. 

[Title.] 
Upon  reading  and  filing  the  petition  of ,  the  de- 
fendant in  the  above-entitled  action,  and  upon  filing  the  bond, 
and  good  and  sufficient  sureties  having  been  offered  by  the  said 
defendant  in  the  premises,  and  the  same  being  by  me,  the  Judge 
of  said  Superior  Court,  duly  accepted,  it  is  hereby  ordered  that 
no  further  proceedings  be  had  in  this  cause,  and  the  removal  of 
the  same  to  the  Circuit  Court  of  the  United  States  for  the  dis- 
trict of  California,  to  be  held  in  and  for  the dis- 
trict of  California,  be  and  the  same  is  hereby  allowed  and 
ordered,  in  accordance  with  the  aforesaid  petition  and  the 
statute  of  the  United  States  in  such  case  made  and  provided. 

[Date.]  [Signature.] 

§  119.  Effect  of  removal  on  injunction.  ISTeither  an  out- 
standing injunction,  nor  a  motion  for  an  attachment  for  its 
violation  prevents  the  removal  of  the  cause.^**^  Injunctions, 
orders  and  other  proceedings  granted  in  the  state  court  prior  to 
removal  are  expressly  continued  in  force  by  section  4  of  the  act 
of  March  3, 1885  (18  U.  S.  Stat,  at  Large,  471).  \Vliere  the  mo- 
tion to  dissolve  an  injunction  in  the  federal  court  is  made  upon 
the  same  papers  upon  which  the  writ  was  granted  in  the  state 
court,  it  is  in  effect  an  application  for  reargument,  and  leave  to 
make  such  motion  should  be  first  applied  for  and  obtained  be- 
fore it  can  be  made.^''^ 

260  Byam  v.  Stevens,  4  Edw.  Ch.  119. 

261  Carrington  v.  Florida  R.  B.  Co.,  9  Blatchf.  468. 


89  PLACE  OF  TRIAL.  §§  120-133 

§  120.  Mandamus  to  compel  trial  after  removal.  The  Su- 
preme Court  of  California  has  no  jurisdiction  to  grant  a  writ 
of  mandate  to  compel  the  Judge  of  a  District  Court  to  proceed 
with  the  trial  of  an  action  commenced  therein,  in  which  an  order 
has  been  made  by  said  District  Court  directing  the  cause  to  be 
transferred  to  the  Circuit  Court  of  the  United  States  for 
trial,  for  the  alleged  reason  that  the  parties  thereto  are  citizens 
of  different  states,  the  subject-matter  being  in  the  jurisdiction 
of  the  said  District  Court.^^ 

§  121.  Removal  refused.  A  suit  in  equity  to  enjoin  a  suit  at 
law  is  in  reality  an  equitable  defense,  and  its  removal  may  be 
refused.^^  A  summons  to  show  cause  why  a  debtor  not  served 
in  the  original  action  should  not  be  bound  by  the  judgment  is 
regarded  as  a  further  proceeding  rather  than  a  new  action,  and 
a  removal  can  not  be  granted  unless  the  plaintiff  is  an  alien,  or 
all  of  the  several  defendants  are  citizens  of  another  state  from 
the  plaintiff.^^ 

§  122.  Surety  approved.  It  is  proper  that  the  order  should 
declare  the  surety  ai>proved.^'' 

5  123.  Writ  of  certiorari  under  section  7  of  the  act  of  March  3, 
1875. 

Form  No.  23. 
The  President  of  the  United  States  of  America  to  the  Judge  of 

the  Superior  Court  of  tlie  county  of ,  in  and 

for  the  state  of  California: 

Whereas  it  hath  been  represented  to  tlio  Circuit  Court  of  the 

United  States  for  the  district  of  " ,  that  a  certain 

puit  was  commenced  in  the  [here  name  the  state  court]  wherein 

,  a  citizen  of  the  state  of ,  was  plain- 

titf,  and ,  a  citizen  of  the  state  of , 

wa.s  defendant,  and  that  the  said   duly  filed  in 

the  said  state  court  his  petition  for  the  removal  of  said  cau^o  into 
the  said  Circuit  Court  of  the  United  States,  and  filed  witli  said 
petition  the  bond  witli  surety  required  l)y  the  act  of  Congress 
rvf  March  3,  1875,  entitled  "An  act  to  determine  the  jurisdiction 
of  the  Cireuit  Courts  of  the  United  Statx:^?,  and  to  regulate  the 

2^2  Franelsfo  v.  Manhatfan  Ins.  Co..  no  Cal.  2S.3. 

2'^3  T?o(rors  V.  Tfotrt-rs,  1   Pnlirp.  ^K\. 

2''-»  ralrrfill.l  V.  r>iirni'(1.  K  Alih.  T'r.  .''.o.'.;  see  Brlghtley's  Digest,  12. 

2«5  Vandevoort  v.  Palnifr,  4  Duer,  677. 

12 


§123  GENEKAL    l-UiNCll'LES.  90 

removal  of  causes  I'roiu  state  courts,  and  for  other  purposes," 
and  that  the  clerk  of  the  said  state  court  above  named  has  re- 
fused to  the  said  petitioner  for  the  removal  of  said  cause  a  copy 
of  the  record  therein,  though  his  legal  fees  therefor  were  ten- 
dered by  the  said  petitioner; 

You,  therefore,  are  hereby  commanded  that  you  fortliwith 
certify,  or  cause  to  be  certified,  to  the  said  circuit  court  of  the 

United  States  for  the  district  of ,  a  full,  true,  and 

complete  copy  of  the  record  and  proceedings  in  the  said  cause, 
in  which  the  said  petition  for  removal  was  filed  as  aforesaid, 
plainly  and  distinctly,  and  in  as  full  and  ample  a  manner  as  the 
same  now  remain  before  you,  together  with  this  writ;  so  that  the 
said  Circuit  Court  may  be  able  to  proceed  thereon,  and  do  what 
shall  appear  to  them  of  right  ought  to  be  done.     Herein  fail  not. 

Witness  the  Honorable  Melville  W.  Fuller,  chief  justice  of 
the  Supreme  Court,  and  the  seal  of  said  Circuit  Court  thereto 
afi&xed,  this,  the day  of ,  A.  D.,  ^^. . 


[Seal.]  Clerk  of  said  Court.^cc 

266  ji^fif,—  "  The  writ  of  certiorari  slioukl  be  addressed  to  tbe  judge 
or  judges  of  the  state  court,  but  a  return  to  the  writ  duly  certified 
may  be  made,  it  is  supposed,  by  the  clerk  of  the  state  court." 
Dillon  on  Removal  of  Caxises,  8S;  citing  Stewart  v.  Ingle,  9  Wheat. 
r>26.  Certiorari  to  state  court.  See  State  v.  Sullivan,  50  Fed.  Rep. 
593. 


CHAPTEE  IV. 

PARTIES  TO  CIVIL  ACTIONS. 

§  124.  Who  are  parties,  generally.  The  persons  by  whom, 
and  the  persons  against  whom,  actions  are  instituted,  are  the 
parties  to  the  actions.  In  courts  of  original  jurisdiction,  the 
former  are  called  plaintiffs,  and  the  latter  defendants.  In 
appellate  courts  they  are  known  as  appellant  and  appellee  or 
respondent;  in  courts  of  error,  as  plaintiff  in  error,  and  de- 
fendant in  error.  The  term  "  parties,"  when  used  in  connec- 
tion with  the  subject-matter  of  the  issue,  is  understood  to 
include  all  who  are  directly  interested,  and  who,  therefore, 
have  a  right  to  make  a  defense,  control  the  proceedings,  or 
appeal  from  the  judgment.  Persons  not  having  these  rights 
are  regarded  as  strangers  to  the  action.^ 

§  125.  In  legal  actions.  So  far  as  this  general  statement 
is  concerned,  it  applies  equally  to  actions  under  the  common- 
law  system  and  to  actions  under  a  Code;  but  the  mode  by 
which  the  interest  which  makes  one  a  proper  or  necessary  party 
is  determined  is  very  different.  In  an  action  at  law,  under  the 
okl  system,  the  plaintiff'  must  l)e  a  person  in  whom  is  vested 
the  whole  legal  right  or  title;  and  if  there  were  more  than  one, 
they  must  all  Ije  equally  entitled  to  the  recovery;  that  is,  the 
right  must  dwell  in  tliom  all  as  a  unit,  and  the  judgment  must 
be  in  their  favor  ecjually,  and  the  defendants  must  be  eciually 
subject  to  the  common  liability,  and  judgment  must  be  ren- 
dered against  them  all  in  a  body.  The  necessity  of  joining  all 
as  plaintiffs  in  wliom  was  vested  the  whole  legal  title,  was  im- 
perative; but  in  certain  cases  the  plaintiff  had  the  right  to 
elect  whether  he  would  sue  all  who  were  liable;  but  wherever 
judgment  passed  against  two  or  more  defendants,  it  was  neces- 
8arily  joint. 

1  Van  Camp  v.  ronimlssionors,  etc>.,  2  West  Coast  Rep.  IS.  No 
one  can  -he  both  plaintiff  and  dcfi-ndant  In  the  same  action.  A 
Iiai*ty  <'an  not  have  a  ri^lit  of  nftinn  ntrainst  himself  as  dr-btor  or 
tnrt-foasor.  nor  rontraft  with  himself,  nor  maintain  an  action 
jiL'alnut  tilmsplf,  in  whatever  different  capacities  he  may  act.  Byrne 
V.  BvriH'.  fM  Cal.  ."G. 


§§  r^G    T-^S  GKNi:i{AL    I'KlNCirLES.  92 

§  126.  In  equitable  actions.  The  suit  ill  equity,  however, 
was  hampered  by  no  such  arbitrary  requirements.  Its  form 
was  controlled  by  two  general  and  natural  principles:  1.  That 
it  should  be  prosecuted  by  the  party  beneficially  interested, 
instead  of  the  party  who  had  the  apparent  legal  right  and  with 
him  might  be  joined  all  others  who  had  an  interest  in  the 
subject-matter,  and  in  obtaining  the  relief  demanded;  and, 
2.  That  all  persons,  whose  presence  was  necessary  to  a  complete 
determinatio-n  and  settlement  of  the  questions  involved,  should 
be  parties  plaintiff  or  defendant,  so  that  all  their  rights  and 
interests,  whether  joint  or  several,  or  however  varied  as  to 
importance  or  extent,  might  be  determined  and  adjusted  by 
the  court.  It  was  not  necessary  that  the  decree  should  pass 
in  favor  of  all  the  plaintiffs  for  the  same  right  or  interest, 
nor  against  all  the  defendants,  enforcing  the  same  obligation. 
Belief  could  be  granted  the  defendant,  or  one  of  several  de- 
fendants, against  the  plaintiffs,  or  against  the  other  defendants. 

§  127.  Equitable  doctrines  adopted  by  codes.  The  Codes  of 
Procedure  of  the  different  states,  while  differing  somewhat  in 
the  details  of  their  provisions,  agree  substantially  in  adopting 
the  rules  observed  by  courts  of  equity  in  regard  to  parties 
in  the  two  features  above  named. ^ 

§  128.  Cause  of  action,  meaning  of.  In  every  case  there 
must  be  a  "cause  of  action;"  that  is,  a  right  on  the  part  of 
one  person,  the  plaintiff,  combined  with  a  violation  or  infringe- 
ment of  that  right  by  another  person,  the  defendant.  The 
expression,  "  cause  of  action,"  includes  in  its  meaning  all  the 
facts  which  together  constitute  the  action,  and,  therefore,  we 
can  not  conceive  of  a  cause  of  action  apart  from  the  person 
who  alone  has  the  right  to  maintain  it.^ 

2  romeroy's  Remedies  and  Remedial  Rifflits,  §§  196-200. 

3  In  analyzing  tlie  expression  "  cause  of  action,"  as  used  in  the 
Code,  Mr.  Pomeroy  says:  "  Eveiy  action  is  broiiglit  in  order  to 
obtain  some  particular  result  which  we  call  the  remedy,  which 
the  Code  calls  tlie  '  relief,'  and  whicli,  when  granted,  is  summed 
up  or  embodied  in  the  judgment  of  the  court.  This  result  is  not 
the  '  cause  of  action,'  as  that  teitn  is  used  in  the  Codes.  It  is  true 
this  final  result,  or  rather  the  desire  of  obtaining  it,  is  the  primary- 
motive  which  acts  upon  the  will  of  the  plaintiff,  and  impels  him  to 
commence  the  proceeding,  and  in  the  metaphysical  sense  it  can 
Itroperly  be  called  the  cause  of  this  action;  luit  it  is  certainly  not 
so  in  the  legal  sense  of  the  phrase.    This  final  result  is  the  '  object 


I 


93  PARTIES   TO    CIVIL   ACTIONS.  §  129 

§  129.  Ex  contractu,  or  ex  delicto.  The  right  which  is  vio- 
lated or  is  infringed  may  be  one  which  is  created  by  a  contract 
or  agreement,  express  or  impHed,  or  it  may  be  a  natural  right, 
or  one  which  exists  in  favor  of  the  plaintiff  as  against  every 
other  person  independently  of  any  contract  or  agreement;  and 
hence,  though  Codes  prescribe  but  one  form  of  action,  yet  the 
right  which  underlies  and  forms  the  basis  of  the  cause  of  action, 
naturally  divides  civil  actions  into  two  primary  classes  or 
divisions,  viz.:  actions  ex  contractu,  for  the  violation  of  contract 
rights,  and  actions  ex  delicto,  for  the  violation  of  natural  rights.* 

Thus,  in  the  case  of  a  written  contract,  wherein  A.  agrees  to 
sell  and  dehver  certain  goods  to  B.,  and  B.  agrees  to  pay  A.  a 
certain  price,  at  a  time  named,  therefor,  a  relation  is  established 
at  once  between  the  parties,  and  the  contract  itself  discloses, 
in  the  light  of  the  facts  constituting  the  breach,  who  the  party 
is  who  is  entitled  to  maintain  an  action  therefor,  and  against 
whom  it  must  be  brought.  The  right,  as  well  as  the  liability, 
is  fixed  by  the  contract,  and  can  not  exist  independently  of  it. 

of  the  action,'  as  that  term  is  frequently  used  in  the  Codes  and  in 
modem  legal  terminology.  It  was  shown  *  *  *  that  every 
remedial  right  arises  out  of  an  antecedent  primai-y  right  and  corre- 
siKjnding  duty,  and  a  delict  or  breach  of  such  primary  right  and 
duty  l>y  the  person  on  whom  the  duty  rests.  Every  judicial  action 
must,  tlierefore.  involve  tlie  following  elements:  A  primarj'  right 
possessed  by  tlie  plaintiff,  and  a  corresponding  primary  duty  de- 
volving upon  tlie  defendant;  a  delict  or  wrong  done  by  the  defend- 
ant, wliicli  consisted  in  a  breach  of  sucli  primaiy  right  and  duty; 
a  remedial  riglit  in  favor  of  tlie  plaintiff,  and  a  remedial  duty  rest- 
ing on  the  defendant,  springing  from  tliis  delict,  and  finally  the 
remedy  or  relief  Itself.  Every  action,  however  complicated  or 
however  simple,  must  contain  these  essential  elements.  Of  these 
elements  the  primarj-  right  and  duty  and  the  delict  or  wrong  com- 
bined constitute  the  cause  of  action  in  the  legal  sense  of  the  term, 
and  as  it  Is  used  In  the  Codes  of  the  several  states."  Remedies,  etc., 
8  4.'>.3.  .\  cause  of  action  is  said  to  be  composed  of  the  right  of  the 
Iilaintlff  and  the  obligation,  duty  or  wrong  of  the  defendant.  These 
conil>lned,  cf>n8litute  the  causj'  of  action.  Veeder  v.  Baker,  S."^  N.  Y. 
IW.,  IW.  When  a  eontract.  express  or  implied,  is  violateil,  a  cause 
of  action  at  onee  accnies.  .Xiid  ilie  same  is  true  of  torts  consti- 
ttitlng  a  trespass  upon  fierson  or  property.     People  v.  Cramer,  15 

Cnl.    l.'j.'i. 

•♦  Ah  to  the  dlstinrtion  between  actions  ex  contractu  and  actions 
rx  delicto,  see  Harvester  Works  v.  Smith,  30  Minn.  ?,^M);  Summer  v. 
Rogers,  90  Mo.  324;  Junker  v.  Fobes,  35  Fed.  Rei).  840. 


§  129  GENERAL   PRINCIPLES.  94 

JUit  in  case  of  a  tort,  as  if  A.  wrongfully  imprisons  B.,  the 
right  of  [^.  to  his  personal  liberty  exists  against  all  the  world; 
but  the  right  having  been  violated  only  by  A.,  he  alone  is  liable 
to  an  action  therefor.  This  right  of  personal  liberty  is  abso- 
lute; it  constantly  exists,  and  does  not  depend  upon  any  con- 
tract or  other  relation  of  the  parties  formed  by  themselves, 
while  in  the  other  case  the  right  is  created  by  the  parties,  and 
can  not  exist  without  it.  Upon  this  difference  depends  the 
distinction  between  actions  on  contract  and  actions  for  tort. 

This  difference  also  lies  at  the  foundation  of  the  rule  that, 
independently  of  a  statute  authorizing  it,  a  right  of  action  for 
a  tort  could  not  be  assigned;  whilst  a  contract,  or  right  based 
upon  a  contract,  could,  at  least  so  far  as  to  vest  the  beneficial 
interest  in  the  assignee,  it  being  considered  that  a  natural  right, 
one  which  the  party  could  not  create,  he  could  not  transfer. 
It  is  not  our  purpose,  however,  to  discuss  in  this  connection 
the  several  kinds  of  contracts  classed  as  negotiable  and  non- 
negotiable,  nor  the  difl'erent  kinds  of  torts  as  affecting  the 
person  or  property,  and  the  distinction  to  be  taken  between 
them-^ 

5  See  Pom.  Rem.,  §  110. 


CHAPTER  Y. 

PARTIES  PLAINTIFF  —  EEAL  PARTY  IX  INTEREST. 

§  130.  Provision  of  codes.  All  the  states  having  a  well- 
defined  Code  of  Practice  or  Civil  Procedure,  except  Georgia, 
have  adopted  the  same  general  rule  as  to  parties  plaintiff,  viz.: 
"  Every  action  must  be  prosecuted  in  the  name  of  the  real 
party  in  interest."  To  this  general  rule  each  Code  names 
certain  exceptions,  which  will  be  hereafter  noticed.  This  gen- 
eral rule  applies  to  all  actions,  whether  founded  upon  a  tort 
or  upon  a  contract.^ 

§  131.  Wlio  is  real  party  in  interest.  Where  Codes  do  not 
prevail,  actions  upon  contracts  must  be  brought  in  the  name 
of  the  party  in  whom  the  legal  interest  is  vested,  or  whose 
legal  interest  has  been  injuriously  affected;  and  the  legal  in- 
terest was  held  to  be  vested  in  him  to  whom  the  promise  was 
made,  and  from  whom  the  consideration  passed.  Thus,  in  an 
action  for  breach  of  contract,  where  no  other  person  has  ac- 
quired an  interest  in  the  matter  in  dispute,  only  the  parties 
to  the  contract  sued  on  should  Ije  made  parties  to  the  suit.^ 

But  the  party  in  wliom  the  legal  interest  is  vested  is  not 
always  the  real  party  in  interest.  "  The  real  party  in  interest  '* 
is  the  party  who  would  be  l)enefited  or  injured  by  the  judg- 
ment in  the  cause.  The  interest  which  warrants  making  a  per- 
pf)n  a  party  is  not  an  interest  in  the  question  involved  merely, 

1  Ab  to  the  pffert  of  this  provision  of  the  Code  in  authorizing 
suits  by  an  assignee,  and  on  the  assipnal>ility  of  causes  of  action, 
sf'e  post,  suMivision  first  of  Forms  of  Complaints,  chapter  I,  Actions 
l»y  Assipnoe.  In  New  Yorl<,  Indiana,  Kansas,  Missouri,  Wisconsin, 
riorida,  Sotitli  Carolina,  Keiifuc!<y  ()iop:on  Nevada,  Dalvota, 
North  Carolina,  Wasliinyfon.  and  Montana  flie  furtlier  provision  is 
addfd:  "Hut  this  softlon  shjill  not  be  deomcd  to  authorize  the 
asslKTiniPnt  of  a  tiling  In  aft  Ion  not  arising  out  of  conlrnot."  The 
defendant  has  a  8tatutoi->'  rlf,'lit  (o  have  a  cause  of  action  ajjainst 
him  pro.sccntfd  by  the  real  jx-rson  in  interest.     Giselman  v.  Starr, 

ion  Cai.  r>r»i. 

2  Barber  v.  Cazalls.  30  Cal.  92. 


§  131  G]^NERAL  PRINCIPLES.  96 

but  some  interest  in  the  subject-matter  of  litigation.^  The  rule 
should  be  restricted  to  parties  whose  iuterests  are  in  issue,  and 
are  to  be  alfected  by  the  decree."*  The  interest  of  the  plaintiff 
must  be  connected  with  the  subject-matter  of  the  action  upon 
which  the  defendant  is  liable,  though  it  is  not  necessary  that 
he  should  be  connecteil  with  it  by  a  legal  title.  Hence,  in  actions 
ex  contractu,  the  parties  must  stand  related  to  the  contract 
which  forms  the  basis  of  the  action. 

Even  equity  will  not  make  a  defendant  liable,  upon  a  con- 
tract, to  a  plaintiff  who  is  neither  a  party  to  the  contract,  nor 
the  legal  or  equitable  owner  of  the  contract  right  to  the  subject- 
matter  of  the  suit,  nor  the  legal  representative  of  such  owner. 
For  example:  A.  contracts  with  B.  to  sell  and  deliver  to  him 
certain  goods,  B.  sells  the  same  goods  to  C.  and  agrees  to  de- 
liver them  to  him  in  the  same  manner  he  would  if  the  goods 
were  already  in  his  possession.  A.  fails  to  deliver  them  to  B., 
and  B.,  therefore,  can  not  deliver  them  to  C.  In  such  case  C. 
can  not  maintain  an  action  against  A.  for  the  nondelivery  of 
the  goods,  notwithstanding  B.  would  have  delivered  to  C.  if  he 
had  received  them;  there  being  no  privity  between  C.  and  A., 
that  is,  C.  is  in  no  way  related  to  the  contract  by  which  A.  had 
agreed  to  deliver  them;  but  it  would  be  otherwise  if  B.  had  as- 
signed his  contract  with  A.  to  C.  Nor  would  it,  in  the  case 
above  supposed,  be  any  defense  to  an  action  brought  by  B. 
against  A.  for  nondelivery,  that  B.  had  resold  the  goods  to  C, 
and  that  C.  did  not  intend  to  sue  B.  for  the  nondelivery: 
Gunter  v.  Sanchez,  1  Cal.  50.  It  is  perfectly  apparent  that 
these  two  executory  contracts  created  no  relation  between  A. 
and  C,  nor  between  C.  and  the  property,  for  the  property  never 
passed  from  A.  because  of  the  nondelivery. 

If,  however,  the  contract  between  A.  and  B.  had  vested  the 
property  in  B.,  and  by  the  second  contract  the  same  property 
became  vested  in  C,  the  latter  might  maintain  an  action  against 
A.  concerning  it;  or,  if  the  goods  after  the  sale  to  B.  had  re- 
mained in  A.'s  hands  as  bailee,  he  would  be  liable  to  an  action 

3  VallGtte  V.  Whitewater  Valley  Canal  Co.,  4  McLean,  192;  5  West. 
Law  Jour.  80;  see  KeiT  v.  Watts,  6  Wheat.  550. 

4  Mechanics'  Bank  of  Alexandria  v.  Soton,  1  Pet.  299;  Elmendorf 
V.  Taylor,  10  Wheat.  152;  Story  v.  Livinsston,  Ex'x,  etc.,  13  Pet. 
.^59;  United  States  v.  Parrott.  1  McAll.  271.  The  real  party  in 
interest  is  the  person  entitled  to  the  avails  of  the  suit.  Hoagland 
V.  Van  Etten,  22  Neb.  681;  Kinsella  v.  Sharp,  47  Id.  664. 


97  REAL   PAKTY   IJV    Hs'TEREST.  §  132 

by  C.  for  the  nondelivery  of  the  goods;  but  in  that  case  the 
bailment,  though  it  may  have  been  created  by  the  terms  of  the 
contract  between  A.  and  B.,  is  in  fact  a  separate  contract  from 
the  sale,  and  imposes  the  duty  upon  A.  of  delivering  the  goods 
to  whomsoever  may  be  the  owner  at  the  time  they  are  demanded, 
and  this  duty  is  the  synonym  of  an  implied  contract  to  deliver 
tliem  to  C,  he  having  become  the  owner;  and  this  implied  con- 
tract must  be  the  basis  of  the  action  brought  by  C.  In  such 
action,  it  is  true,  it  may  be  necessary  to  prove  both  contracts, 
because  in  the  case  supposed  these  contracts  show  the  facts 
from  which  the  implied  contract  arises,  viz.,  the  bailment  and 
the  ownership. 

§  132.  When  promise  is  for  benefit  of  third  person.  In  regard 
to  actions  upon  promises  made  for  the  benefit  of  third  persons, 
there  has  been  much  conflict  in  the  decisions  of  the  courts 
of  the  different  states,  especially  among  those  which  retain  the 
common-law  system  of  procedure  as  to  the  right  of  such  third 
person  to  maintain  an  action  against  the  promisor.  In  a  ma- 
jority of  such  latter  states,  however,  the  doctrine  is  now  settled 
that  such  right  of  action  exists.  Thus,  in  a  recent  case  in 
New  Jersey,  the  court  said:  "The  doctrine  is  well  settled  in 
this  state  that  if,  by  a  contract  not  under  seal,  one  person 
makes  a  promise  to  another  for  the  benefit  of  a  third,  the  third 
may  maintain  an  action  on  it,  though  the  consideration  did 
not  move  from  him.''^ 

5  rrif-e  V.  TrosdPll,  28  N.  .T.  Eq.  200.  The  case  to  wliioli  the  court 
referred  as  sotllin;,'  that  doctrine  in  that  state  was  Joslin  v.  The 
N.  .7.  Car  Spring  Co..  30  N.  ,1.  I..  141.  The  facts  in  the  latter  case 
(whifh  was  an  action  at  law)  wore,  that  the  plaintiff  was  era- 
[iloyed  as  foreman  Ity  Fields  &  Kin;:,  manufactiu-ors,  at  a  salary 
of  .$2.0f)0  a  year  from  P^el)rnaiy  1,  1870,  to  October  31.  1871,  at 
which  last  date  the  defendants  bought  Fields  &  King's  stock  and 
assets,  assumed  their  liabilities,  and  earried  on  their  business.  The 
jilaiiitiff  assented  to  this  transfer  of  liability,  and  eontinued  to  act 
as  foreman  up  to  .Tanuaiy,  1H72,  wlien  he  was  diseliaryed.  This 
aetlon  was  brouuht  to  recover  from  the  defendants  his  salary  from 
Fef)ruary  1,  bH70,  to  .lanuaiy,  1872.  The  jury  returned  a  verdict  in 
his  favor,  and  on  a  rule  to  show  cause  why  the  verdict  should  not 
lie  set  aside,  it  was  held  tl)at  he  was  entitled  to  recover  his  .salaiy 
for  the  whole  period.  The  court  said:  "It  Is  stated  in  some  of 
the  authorities  cited,  as  a  result  of  a  review  of  cases,  that  this  la 
now  well  settled  as  a  treneral  rule.  It  must  be  borne  in  mind,  how- 
ever, that  this  case  falls  within  a  special  class  of  cases  where  the 

Vol.  1—13 


^  13"^  GENERAL   PRINCIPLES.  98 

The  action  of  assumpsit,  at  eoimuon  law,  could  not  be  main- 
tjiined  upon  such  promise,  unless  upon  the  theory  that  there  was 
an  implied  promise  to  the  creditor,  for  in  that  form  of  action 
tiie  plaintiii'  is  obli<i;ed  to  aver  a  promise  to  himself;  ami  if  such 
[)roinise  nuiy  be  implied,  there  is  no  reason  for  confining  the  right 
of  action  to  any  class  of  cases  where  a  consideration  sutlicient  to 
su{>port  any  contract  between  strangers  has  passed  to  the  party 
making  the  promise.  If,  however,  the  action  is  brought  in 
■■  case  "  instead  of  assmupsit,  there  would  be  good  grounds  for 
the  distinction. 

Under  the  Code,  which  not  only  abolishes  the  distinctions  be- 
tween actions  at  law  and  suits  in  equity,  but  requires  that  every' 
action  shall  be  brought  in  the  name  of  the  real  party  in  interest, 
there  would  seem  to  be  little  doubt  of  the  right  of  the  party  for 
whose  benefit  the  promise  was  made  to  maintain  the  action,  al- 
though such  promise  is  contained  in  a  writing  under  seal.  Nor 
does  this  conflict  with  the  rule  above  laid  down,  that  "  the  plain- 
tiff must  stand  related  to  the  contract,  for  the  test  is  not  the 
legal  but  the  equitable  title,  right,  or  interest,  and  that  interest 
is  directly  created  by  the  contract."^ 

party  who  makes  the  promise  has  received  from  the  party  to 
whom  the  promise  is  made,  money  or  property,  from  or  out  of 
which  he  is  to  pay  creditors  of  the  second  party.  See  Mellen, 
Adm'x,  V.  Whipple,  1  Gray  (Mass.),  317.  And  in  this  class  of  cases 
the  right  of  the  creditor,  the  party  for  whose  benefit  the  promise 
was  made,  to  recover  is,  we  think,  sustained  by  the  weight  of 
authority."  See,  also,  Baker  v.  Eglin,  11  Oreg.  333;  Chrisraan  v. 
State  Ins.  Co.,  16  id.  289;  Seaman  v.  Whitney,  3.5  Am.  Dec.  618; 
Burrows  v.  Turner,  id.  622;  Barker  v.  Bucklin,  43  id.  720,  and  eases 
cited  in  notes  thereto.  A  person  with  whom  or  in  whose  name  a 
contract  has  been  made  for  the  l>enefit  of  another  may  maintain  an 
action  thereon  in  liis  own  name.  Iloclvwell  v.  Ilolcomb,  3  Col. 
App.  1. 

6  Wiggins  V.  McDonald,  18  Cal.  126;  Pomeroy's  Remedies,  §  139 
et  seq.,  where  this  subject  is  discussed  at  length.  See,  also,  Sacra- 
mento Lumber  Co.  v.  Wagner,  67  Cal.  293;  Malone  v.  Transportation 
Co.,  77  id.  38. 


I 


CHAPTER  VI. 

PAETIES  PLAINTIFF  —  ACTIONS  FOUNDED  ON  CONTRACT. 

§  133.  How  plaintiff's  relation  to  the  contract  may  arise. 
The  relation  to  the  contract  necessary  to  enable  one  to  maintain 
an  action  upon  it  may  be  created  in  many  different  ways:  1.  By 
the  contract  itself,  as  in  the  case  of  the  original  i^arties  to  the 
contract;  2.  By  transfer  or  assignment;  3.  By  operation  of  law, 
as  in  the  case  of  executors  or  administrators  of  a  deceased  party 
to,  or  assignee  of,  a  contract;  4.  By  aid  of  the  law,  as  in  case  of 
attachment  or  garnishment  of  debts  due,  or  property  in  posses- 
sion; but  in  most  states  this  is  a  special  proceeding  in  aid  of  an 
action  pending;  or  for  the  enforcement  of  a  Judgment  rendered, 
While  in  some  states; as  in  Michigan,  although  a  suit  must  tirst 
be  commenced  against  the  principal  defendant  before  a  writ  of 
garnishment  can  be  obtained  against  one  indebted  to  him,  yet 
the  affidavit  for  the  writ  and  the  answer  of  the  garnishee  form 
an  issue  between  them,  and  the  case  is  docketed  and  tried  as  an 
independent  suit,  and  a  judgment  is  rendered  therein  for  or 
against  the  garnishee,  as  in  other  actions,  l)ut  as  the  garnishee 
of  the  principal  debtor.  Although  the  plaintiff  in  this  proceed- 
ing is  subrogated  by  force  of  the  statute  to  the  rights  of  the  de- 
fendant in  the  principal  case,  yet  it  is  more  analogous  to  pro- 
cess of  attachment  against  the  principal  debtor's  property,  by 
which  a  lien  is  secured  upon  it  in  advance  of  the  Judgment,  since 
judgment  can  not  be  ol)taincd  against  the  garnishee  until  the 
}>]aintifr  has  obtained  judgment  against  the  principal  defendant, 
and  the  moneys  obtained  by  the  proceeding  must  be  applied 
to  the  satisfaction  of  the  principal  judgnicnt,  and  does  not  other- 
wise become  the  property  of  the  plaintiff. 

§  134.  Joipder  of  plaintiffs  generally,  'i'ho  provisions  of  the 
Code  in  respect  to  the  joinder  of  parties  plaintiff  are  borrowed 
from  the  fonner  equity  practice,  and  are  as  follows:  "All  persons 
baving  an  interest  in  the  subject  of  the  action,  and  in 
obtaining  the  relief  deiiiiiiided.  may  I)e  joined  as  plaintiffs, 
except  when  otherwise  provided."^       And  "of  the  parties  to 

1  Cnl.  Coflo  riv.  Prn.,  §  378. 


§  135  GENERAL  PRINCll'LES.  100 

the  act  ion  llios^o  who  are  united  in  interest  must  be  joined 
as  phiintitl's  or  defeudautsi  but  ii  the  consent  of  any 
one  who  shouhl  have  been  joined  aa  plaintiir  can  not  be  obtained, 
he  may  be  made  a  defendant,  the  reason  thereof  being  stated  in 
the  eonii)kunt,"  (or  petition).-  These  sections,  as  well  as  the 
one  wliieh  provides  that  all  actions  shall  he  prosecuted  in  the 
luinie  of  the  real  party  in  interest,  have  many  exceptions,  whicli 
will  be  hereafter  noticed. 

The  defendant  in  an  action  who  has  made  but  one  contract 
or  incurred  a  single  liability,  obviously  has  the  right  to  require 
that  the  whole  case  be  disposed  of  in  one  action.  There  may 
be  cases  of  a  contract  made  with  two  or  more  persons  of  such 
nature  that  a  particular  breach  by  the  one  party  may  injure 
but  one  of  several  persons  who  form  the  other  party  to  the  con- 
tract; and  in  such  case  only  the  person  who  has  sustained  dam- 
ages, and  who  would  be  entitled  to  receive  compensation  for  the 
breach,  need  sue;  but  wherever  the  damages  are  sustained  by 
all  of  several  constituting  one  of  the  parties  to  the  contract,  all 
must  join  as  plaintiffs,  unless  the  contract  itself  severs  the  in- 
terest of  each  from  the  other,  or  unless  the  amount  to  which  each 
is  entitled  has  been  determined  by  the  mutual  agreement  of  both 
parties  to  the  contract,  which  of  course  would  amount  to  a  several 
liquidation,  and  would  enable  each  party  to  sue  separately  for 
his  share;  the  contract  and  the  breach  in  such  case  being  only 
matter  of  inducement. 

"A  contract  by  one  person  with  two  jointly  does  not  compre- 
hend or  involve  a  contract  with  either  of  them  separately,  as  is 
evident  from  the  well-known  doctrine  that  a  covenant  or  promise 
to  two,  if  proved  in  an  action  brought  by  one  of  them,  sustains 
a  plea  which  denies  the  existence  of  the  contract."^ 

§  135.  Plaintiffs  must  represent  entire  cause  of  action.  The 
question  as  to  the  joinder  of  parties  being  one  of  the  principal 
grounds  of  demurrer,  is  one  of  great  importance  and  frequent 
adjudication.  It  follows  from  the  statement  that  the  plaintiff 
or  plaintiffs  must  represent  the  entire  cause  of  action  (that  is, 

2  Id.,  §  382.  These  provisions  as  to  tlie  joinder  of  parties  may 
be  found  in  tlie  Codes  of  tlie  several  states  which  have  adopted  the 
Code  Procedure. 

sWetherell  v.  Langston,  1  Exch.  644.  All  the  parties  to  a  joint 
and  several  contract  are  not  necessary  parties  to  an  action  thereon. 
Warren  v.  Hall,  20  Col.  508. 


101  ACTIOXS   FOUXDED    ON    COXTEACT.        §§  136,  137 

that  the  cause  of  action  can  not  be  divided),  that  all  who  are  in- 
terested in  the  cause  of  action  and  in  obtaining  the  relief  sought, 
must  be  joined  as  plaintiffs.  We  use  the  words  "  represent " 
and  "  interested  "  in  the  sense  used  in  the  Codes.  The  person 
or  persons  who  "  represent "  the  entire  cause  of  action  must  be 
■"  the  real  paity  in  interest." 

§  136.  Refusal  of  plaintiffs  to  join.  Exceptions  to  the  fore- 
going general  rule  existed  at  common  law,  and  are  provided  for 
m  the  Codes.  The  death  of  one  of  the  persons  thus  interested, 
or  his  refusal  to  join,  have  been  held  sufficient  reasons  for  the 
failure  to  make  such  person  a  coplaintiff,  the  reason  appearing 
in  the  complaint,  and,  in  case  of  refusal  to  join,  he  should  be 
made  a  defendant."* 

But  in  such  case  the  recover}-  must  be  entire,  and  for  the  whole 
interest,  so  that  the  defendant,  against  whom  the  recovery  is  had, 
may  not  be  subjected  to  a  second  action:  while  those  jointly 
entitled  to  the  recovery,  though  one  of  them  is  a  defendant, 
being  both  before  the  court,  may  have  thoii-  mutual  rights  and 
interests  adjusted  in  the  same  decree  or  judgment;  or  if  from  a 
complication  of  accounts,  as  between  partners,  that  is  incon- 
venient, the  recovery  must  enter  into  the  accounting  between 
them.  The  person  thus  made  a  defendant  is  equally  with  the 
plaintiff'  bound  by  the  judgment  or  decree. 

§  137.  Where  parties  are  numerous.  In  equity,  the  rule  that 
all  persons  jiiatcrially  interested  must  be  made  parties  was  al- 
ways dispensed  with  where  it  was  impractical)le,  or  very  incon- 
venient, as  in  the  case  of  a  very  numerous  association  in  a  stock 
concern,  in  eff'ect  a  partnership.^  This  same  rule  is  embodied 
ill  the  Code,  which  provides  that  where  the  parties  are  numerous, 
anrl  it  is  impracticaljle  to  bring  them  all  before  the  court,  or 
where  the  question  is  one  of  common  or  general  interest,  one 
or  more  may  sue  or  defend  for  the  benefit  of  nil.  It  would  be 
very  difficult  to  lay  down  any  positive  rule  l)y  which  the  degree 
nf  the  inconvenience  which  would  justify  the  omission  could  be 

'  Srp  f'al.  rvMlo  Civ.  Pro..  §  .^S2;  Ni,-lilin^'ale  v.  Seaiiiiell,  (5 
Cal.  noft;  S.  (\,  IS  id.  .",22:  Hays  v.  Lasater  ct  al,  .'{  Ark.  r>Or»; 
Moody  v.  Sewall.  14  Me.  211."):  aulc,  §  1.''.4,  n.:  (Joddiiig  v.  Deeker,  3 
Col.  App.  1!»S:  .Mien  v.  Miller,  11  (Mii(.  Si.  ;;71:  First  .Nal.  Hank  v. 
Iluituiieil,  14  f'ol.  2."I». 

f' Cork  hum  v.  Thompson.  lH  Ves.  321;  Stoiy's  Eq.  PI.,  §  135;  Gor- 
mnn  v.  rjiissell,  14  Cal.  540. 


§§  138.    i;>'.>  GENERAL    I'KJ  NCI  I'LKS.  102 

absolutely  ik'tcnninoil.  Otlicr  circ'uin.stanees  aside  from  the 
numbers  must  often  enter  into  a  proper  determination.  The 
cxigcneiea  of  the  case,  the  necessity  for  prompt  action,  the 
hazards,  or  inevitable  loss  from  dehiy,  might  justify  the  omission 
in  one  eaiie,  while  in  another  all  the  defendants,  though  equally 
numerous,  should  be  brought  in.  The  facts  relied  upon  to 
justify  the  omission  should  be  clearly  stated  in  the  complaint, 
and  become  a  matter  for  judicial  decision,  governed  by  the  spirit 
of  the  Code  and  the  facts  of  the  particular  case.'' 

§  138.  Common  interest,  what  is.  The  test  of  the  unity  of 
interest  referred  to  in  this  section  is  that  joint  connection  with, 
or  relation  to,  the  subject-matter  which,  by  the  rules  of  the 
common  law,  will  preclude  a  separate  action.  It  refers  to  such 
eases  as  joint  tenants,  cotrustees,  partners,  joint  owners,  or  joint 
contractors  simply.'^  In  all  these  cases  the  right,  to  assert  or 
protect  which  the  suit  is  brought,  is  one  which  exists  against 
them  all,  or  the  obligation  to  be  enforced  is  common  to  them 
all;  then,  if  it  is  impracticable  to  bring  them  all  before  the  court, 
one  may  sue  or  defend  for  all.^  The  r\ile  which  permits  the 
omission  of  parties,  and  the  filing  of  a  bill  by  one  in  behalf  of  all 
the  others,  is  founded  on  necessity,  and  is  established  to  prevent 
a  failure  of  justice  which  could  not  be  otherwise  avoided.^ 

§  139.  Actions  by  joint  tenants  and  tenants  in  common. 
The  Code  of  California,  following  in  this  respect  the  majority  of 
the  Codes  of  the  various  states,  provides  that  "  all  persons  hold- 
ing as  tenants  in  common,  joint  tenants,  or  coparceners,  or  any 
number  less  than  all,  may  jointly  or  severally  commence  or  de- 
fend any  civil  action  or  proceeding  for  the  enforcement  or  pro- 
tection of  the  rights  of  such  party."^^  It  is  also  provided  that 
''  any  two  or  more  persons  claiming  any  estate  or  interest  in 

cin  Andrews  v.  Mokelumno  Hill  Co.,  7  Cal.  333,  It  was  held  that 
section  14  in  the  former  Practice  Act  was  intended  to  apply  to  suits 
in  equity,  and  not  to  actions  at  law.  Subsequent  dec-isions  of  this 
c-oiu"t  abolislied  all  distinctions  between  the  actions  at  law  and  suits 
in  equity  in  tliis  respec-ct. 

7. Tones  v.  Fekh,  3  Bosw.  03:  Buolinam  v.  Brett,  3.5  Barb.  596; 
Cibbons  v.   IVralta,  21  Cal.  C>32.  G.33. 

«  Keid  V.  The  Evergreens,  21  How.  (N.  Y.)  319;  Carey  v.  Brown, 
.'".S  Cal.  180:  Balver  v.  Ducker,  79  id.  36.5. 

'•>  Bouton  v.  City  of  Brooklyn,  1,5  Barb.  375;  Smith  v.  Lock  wood, 
13  id.  209:  Towner  v.  Tooley,  38  id.  598. 

10  Cal.  Code  Civ.  Pro.,  §  384. 


103  ACTIONS    FOUXDED    ON    CONTKACT.  §  139 

lands  imder  a  common  source  of  title,  whether  holding  as 
tenants  in  common,  joint  tenants,  coparceners,  or  in  severalty, 
may  unite  in  an  action  against  any  person  claiming  an  adverse 
estate  or  interest  therein,  for  the  purpose  of  determining  such 
adverse  claim,  or  of  establishing  such  common  source  of  title,  or 
declaring  the  same  to  be  held  in  trust,  or  of  removing  a  cloud 
upon  the  same."^^ 

At  the  common  law,  joint  tenants  were  required  to  join  in  an 
action  of  ejectment,  and  the  failure  to  do  so  was  fatal  to  a  re- 
covery.^- While  two  or  more  cotenants  could  not  join  in  an 
action  of  ejectment,  the  interest  of  each  being  separate  and  dis- 
tinct.^^  But  under  this  provision  the  right  of  one  tenant  in 
common  to  recover  in  an  action  of  ejectment  the  possession  of 
the  entire  tract  as  against  all  persons  but  his  cotenants,  has 
been  repeatedly  upheld.^"*  Or  he  may  sue  alone  for  his  moiety;^-'. 
or  may  in  equity  obtain  a  partition.^*'  And  these  rules  apply 
equally  to  the  grantee  of  the  tenant  in  common. ^^  So,  also,  ex- 
ecutors and  administrators  can  maintain  such  action  jointly  with 
the  other  tenants  in  common  in  all  cases  where  their  testators 
«r  intestates  could  have  done  so,  until  the  administration  of  the 
estates  they  represent  have  closed,  or  the  property  distrilnited 
under  the  decree  of  the  Probate  Court.^''*  But  if  an  estate  shoidd 
I'C  sold  in  lots  to  different  ])urcliasers.  they  could  not  join  in 
exhibiting  one  bill  against  the  vendor  for  specific  performance; 
but  where  there  was  a  contract  to  convey  with  but  one  person, 
under  wjjich  the  purchaser  conveyed  his  equitable  interest  of  a 
moiety  to  each  one  of  two  persons,  it  was  held  that  these  two 
persons  might  sue  the  original  vendor  for  specific  performance.^'-^ 

11  Id.,  §  3S1,  olTcct  July  1,  1S74;  see,  also,  §§  384,  738.  and  14r)2. 

12  Dowoy  V.  Laiiil)itr.  7  ("al.  347. 

13  De  Johnson  v.  Sepulbeda,  ;">  Cal.  H!>:  'llu-ocUniorlon  v.  Kurr.  id. 
4<H;  Welch  v,  Sullivan,  8  id.  187. 

14'roufhard  v.  Crow,  20  Cal.  ir.O;  si  .Vm.  Doc.  108;  Stark  v.  P.ar- 
reft,  15  Cal.  371;  Mahoney  v.  Van  "Winkle,  21  Id.  583;  Gallcr  v.  I'ott, 
I'.t)  i«l.  484;  Weisp  v.  liarkcr.  2  West  Coast  Rop,  108. 

i-'CovillaiKl  V.  Tanner.  7  Cal.  38;  Collier  v.  Corbett.  15  id.  18.^,. 

i«Tinnpy  v.  Stelthins,  2.S  Harl).  2!Mi;  Tv\v\i  v.  Uilcy,  15  id.  333; 
Wi-hve  V.  (J rifling.  14  .\.  Y.  2.35. 

I"  Slark  V.  Harrott.  15  Cal.  3(il;  approved  in  Toncrianl  v.  Crow, 
21  Id.  1«;2;  ll.'irl  v.  Uolicrtson.  id.  3tS:  M.ilioncy  v.  \'an  Winkle,  id. 
.^s.•!;  Kced  v.  Spifcr,  27  id.  <il:  Carpenii  r  v.  \V('l)stcr,  id.  5t>0;  Seward 
V.  Malotle.  15  id.  30-1. 

i«  RpynoldH  v.  Hosnu-r.  45  Cal.  C.'Jl. 

10  Owen  v.  Frink,  24  Cal.  177. 


Js  140  GENEKAl.    I'KlNCll'LES.  104 

And  w  lioro  (Uir  trnaiii  in  coimnon  sells  the  right  to  a  stranger  to 
cut  tinibor  otl'  the  coiiiinoii  })n)j)erty.  another  tenant  in  common 
of  the  s«anie  jiroperty  can  not  maintain  replevin  for  the  timber 
after  it  is  ont.-^  After  severance  of  a  fund  held  in  common, 
each  party  may  maintain  a  separate  action  for  his  ascertained 
share.-' 

§  140.  Actions  by  joint  owners  of  chattels.  IVtth  at  the 
commo]!  law  and  imdci'  the  Code  a  co-owner  of  a  chattel  can 
maintain  no  action  to  enforce  his  proprietary  rights  therein 
without  joining  his  co-owners.  Thus,  one  co-owner  can  not 
recover  j)ossession  of  the  common  ])roperty  from  his  co-owner 
"who  is  in  the  exchisive  possession  thereof,  in  an  action  in  the 
nature  of  replevin. ^^  Tluis,  tenants  in  common  of  wool,  who 
became  such  hy  one  of  tliem  letting  sheep  for  a  year  to  the 
other,  with  an  agreement  that  the  latter  was  to  take  care  of 
the  sheep,  shear  them,  sack  the  wool,  and  deliver  it  to  the 
owner  of  the  sheep  at  S.,  a  port,  to  be  l)y  him  shipped  to  a 
commission  merchant  at  S.  F.,  to  he  sold,  and  that  when 
the  wool  was  sold  the  proceeds  were  to  be  equally  divided,  can 
not  maintain  replevin  against  each  other,  nor  can  one  against 
the  vendee  of  the  other ;^'^  and  the  same  necessity  exists  for 
the  Joinder  of  all  the  cotenants  in  an  action  to  recover  for  the 
conversion  by  a  stranger.-^  So,  also,  tenants  in  common  miist 
join  in  an  action  for  an  entire  injury  done  to  the  partnership 
property,  either  in  tort,  or  assumpsit  when  tort  is  waived.^^ 
Joint  owners  or  joint  charterers  of  ships  are  tenants  in  common, 
and  must  all  join  in  an  action  affecting  the  common  property, 
or  for  the  recovery  of  freight. ^^ 

20Alfor(l  v.  Dradeen,  1  Xev.  228. 

21  Ocn.  :Mut.  Ins.  Co.  v.  Benson,  5  Duer.  1G8. 

22  Cross  V.  Ilulett,  .53  Mo.  897:  Mills  v.  Malott,  43  Ind.  248;  Stall 
v.  Wilbni-.  77  N.  Y.  158;  Hill  v.  Seager,  2  AVest  Coast  Itep.  073. 

2?.  Hewlett  V.  Owens,  50  Cal.  474;  S.  C,  51  id.  570. 

24  Whitney  v.  Stark,  8  Cal.  514;  08  Am.  Dec.  300;  Rice  v.  Hollen- 
beck,  19  Barb.  004;  Gock  v,  Kenneda,  29  id.  120;  Tanner  v.  Hills, 
44  id.  428;  but  see  Yamhill  Bridge  Co.  v.  Newby,  1  Oreg.  173. 

2.'  Gilmore  v.  Wilbur,  12  Fick.  120;  Corcoran  v.  White,  146  Mass. 
329;  4  Am.  St.  Rep.  313;  Clapp  v.  Inst,  for  Savings,  15  R.  I.  489;  2 
Am.  St.  Rep.  915.  Exception  to  rule.  See  Peck  v.  McLean.  36 
Minn.  228;  1  Am.  St.  Rep.  005. 

2fi  Merritt  v.  Walsh,  82  X.  Y.  085;  Donnell  v.  Walsh.  33  id.  43; 
88  Am.  Dec.  301;  Buckman  v.  Brett,  22  How.  Tr.  2.88;  13  Abb. 
Tr.  119;  see  Bishop  v.  Edmiston,  13  id.  340;  Sherman  v.  Fream,  30 


105  ACTIONS   FOUXDED    ON    CONTRACT.  §  141 

§  141.  Actions  by  executors  and  administrators.  The  pro- 
vision that  every  action  must  be  prosecuted  in  the  name  of 
the  real  party  in  interest  has  certain  exceptions.  Thus  the  Code 
provides  that  "  an  executor,  administrator,  or  trustee  of  an 
express  trust,  or  a  person  expressly  authorized  by  statute,  may 
sue  without  joining  with  him  the  persons  for  whose  benefit 
the  action  is  prosecuted.  A  person  with  whom  or  in  whose 
name  a  contract  is  made  for  the  benefit  of  another  is  a  trustee 
of  an  express  trust,  within  the  meaning  of  this  section."  ^'^ 

In  the  case  of  executors,  it  was  formerly  the  rule  that  w^here 
several  were  named,  all  must  join  in  an  action,  even  though 
some  renounce.^*  By  section  1355,  California  Code  of  Civil 
Procedure,  only  those  who  have  been  appointed  by  the  court 
should  join;  "  those  appointed  have  the  same  authority  to  per- 
form all  acts  and  discharge  the  trust  required  by  the  will,  as 
effectually  for  every  purpose  as  if  all  were  appointed  and  should 
act  together."  But  where  there  are  two  administrators,  and 
only  one  acting,  he  may  sue  alone  in  his  own  right  on  a 
guaranty   executed   since   decedent's   death. ^^ 

Under  the  Code,  executors  have  the  right  to  institute  actions 
under  the  general  authority  conferred  by  statute.^*^  But  the 
provision  tbat  an  executor  may  sue,  without  joining  with  him 
the  person  for  whose  benefit  the  action  is  prosecuted,  has  no 
application  in  case  of  an  action  for  the  construction  of  a  will.^^ 

In  California,  it  is  also  provided  that  "actions  for  the  re- 
covery of  any  property,  real  or  personal,  or  for  the  possession, 
thereof,  and  all  actions  founded  upon  contracts,  may  be  main- 
tained l)y  and  against  executors  and  administrators  in  all  cases 
in  which  the  same  might  have  been  maintained  by  or  against 

P.arb.  47S;  Coster  v.  New  York  A:  Krio  11.  K.  Co.,  0  Duqr,  4.3;  Dennis 
V.  Kennedy,  19  Barb.  .">17, 

27  Cal.  Code  Civ.  Pro.,  §  300.  .\  inucliaser  of  real  i)roi)ei-1y  at 
execution  sale,  wlio  reooives  tlie  slicriff's  deed  in  liis  .own  name, 
liiit  in  n-ality  for  tlie  Ix-nefit  of  anotlier,  is  a  tnistee  of  an  expross 
iiii.st.  and  nifiy  sue  tlie  tenant  in  j^jssession  for  tlie  value  of  tlie 
use  and  of(Miiiati(»n.  witliont  Joining  tlie  person  for  whose  1)enefit 
tlic  pureliase  was  inndc     Walker  v.  MeCnskor,  71  Cal.  r>n."). 

2X0  Co.  .",7:  1  Chit.  IM.  1.'?:  1  Sannd.  21)1;  3  Hac.  32;  Toll.  OS;  Bodle 
V.  IIul.se.  r,  Wend.  .'51.3. 

2fl  Taeker  v.  Willson,  1.".  A\(  iid.  :m.*'.. 

■w  Curtis  V.  Sutter,  If)  Cal.  2'>i):  Ilalleck  v.  Mixer,  10  Id.  579; 
Tesfhniarher  v.  Thompson,  IS  id.  20;  71t  .\ni.   Dor.  ir>l. 

31  Hobart  College,  Trustees  of,  v.  Fitzbugli,  27  N.  Y.  130. 

14 


§14:1  CiENEUAL   riillSCll'LES.  106 

their  respective  testators  or  intesUiLes/"  •"  iu  sueli  section,  ac- 
tions to  quiet  title  to  lauds  are  omitted.  Jiy  section  145;^  it 
is  provided  "  that  the  heirs  or  devisees  may  themselves,  or 
jointly  with  the  executor  or  administrator,  maintain  an  action 
for  the  possession  of  the  real  estate,  or  for  the  purpose  of  quiet- 
ing title  to  the  same,  against  any  one  except  the  executor  or 
administrator." 

As  executors  and  administrators  are  required  to  take  into 
their  possession  all  the  estate  of  the  decedent,  real  and  personal 
(§  1581),  they  must  have  the  right  to  maintain  an  action 
for  its  possession,  without  being  compelled  to  obtain  the  con- 
sent of  the  heirs  or  devisees,  but  it  is  not  clear  that  the  execu- 
tor or  administrator  can  bring  an  action  to  quiet  title  without 
joining  the  heir  or  devisee,  under  either  of  these  provisions. 
However,  in  cases  where  it  became  necessary  to  the  proper  exe- 
cution of  the  trust  that  such  action  should  be  brought,  he 
might  if  the  heirs  or  devisees  refused  to  join  as  plaintiffs, 
make  them  defendants,  under  section  382.^^ 

In  construing  these  provisions  it  has  been  held  that  an  ex- 
ecutor or  administrator  can  maintain  an  action,  without  joining 
his  beneficiary,  for  the  wrongful  conversion  or  embezzlement  of 
the  property  of  his  intestate;^*  or  an  action  of  replevin ;^^  or  for 
trespass  to  the  real  property  of  the  testator;^®  or  to  foreclose  a 
mortgage  ;^'^  or  to  set  aside  deeds  fraudulently  made  by  the 
deceased.^*  So,  also,  an  administrator  may  maintain  an  action 
on  a  note  made  payable  to  him  as  administrator.^^  But  in 
Massachusetts  an  administrator  of  the  deceased  promisee  and 
the  surviving  promisee  of  a  promissory  note  can  not  join  in 

32  Cal.  Code  Civ.  Pre,  §  1,582. 

33  But  see  Curtis  v.  Sutter,  !.'>  Cal.  2.'>9.  Heirs  may  maintain 
action  to  quiet  title  without  joining  the  admiiiistrator.  Tryon  v. 
Huntoon,  67  Cal.  325. 

34Jahns  V.  Nolting,  29  Cal.  507;  Beckman  v.  McKay,  14  id.  250; 
referred  to  in  Jahns  v.  Noltinj?,  29  id.  512;  Sheldon  v.  Hoy,  11  How. 
Pr.  11. 

35Hallefk  v.  Mixer,  16  Cal.  ,57.'). 

36Haight  v.  Green,  19  Cal.  113;  Rockwell  v.  Saunders,  19  Barb. 
473. 

37  Harwood  v.  Mnrye,  8  Cal.  ,580. 

3S  Cal.  Code  Civ.  Pro.,  §  1,589;  ])ut  see  contra,  Snydor  v.  Voorhies, 
2  West  Coast  Ker».  61 6. 

39  Corcoran  v.  Doll.  32  Cal.  82;  Copper  v.  Kerr,  3  Johns.  Cas.  606; 
Eaple  V.  Fox,  28  Barb.  473;  Robinscm  v.  Crandall.  9  Wend.  425; 
Bright  v.  Currie,  5  Sandf.  433;  Merritt  v.  Seamen,  6  N.  Y.  168. 


107  ACTIOKS   FOU.N'DED    OX    COXTRACT.  §  141 

bringing  an  action  on  the  note.-*"  Nor  can  an  administrator 
de  bonis  non  maintain  an  action  in  his  own  name  for  the  price 
of  goods  of  his  intestate,  sold  by  a  previous  administrator.*^ 

On  a  demand  due  to  the  testator  before  his  decease,  the  ex- 
ecutor may  sue,  either  in  his  individual  capacity  or  in  his 
capacity  as  executor.*^  go  he  may  sue  as  administrator,  or  in 
his  own  right  upon  a  note  made  or  indorsed  to  him  as  admin- 
istrator;*^ and  in  an  action  for  conversion,  after  the  death  of  the 
intestate,  the  administrator  may  sue  in  his  own  name  properly, 
though  the  conversion  took  place  before  the  granting  of  the 
letters  of  administration,  as  the  letters  relate  back  to  the  time 
of  the  death,  and  give  title  by  relation.**  And  it  has  been  held 
in  New  York  that  an  executor  may  sue  in  two  different  capaci- 
ties, as  executor  and  devisee,  where  the  causes  of  action  are 
such  as  may  be  joined.*^ 

A  foreign  executor  or  administrator  can  not  sue  in  another 
state  in  his  representative  capacity.  His  authority  does  not 
extend  beyond  the  jurisdiction  of  the  government  under  which 
he  was  invested  with  his  authority.*^  The  objection  that  a  for- 
eign administrator  can  not  sue  must  be  taken  by  demurrer.*''' 

But  the  assignee  of  the  thing  in  action  transfeiied  by  such 
foreign  executor  or  administrator,  may  sue  the  debtor  resident 
in  another  sfate.  The  disability  of  the  representative  is  per- 
sonal and  does  not  affect  the  subject  of  the  action;  and  in  tlie 
application  of  this  rule,  executors  or  administrators  made  or 
appointed  under  the  laws  of  any  other  state  in  the  Union  are 
regarded  as  foreign.*^ 

40Sniifli  v.  Frnnklin,  1  >rass.  480. 

41  CiiJder  v.  Pyfer,  2  Crauch  C.  C.  4.'^0.  An  adniiiiistrator  can  not 
maintain  an  action  to  recover  personal  property  bclonsinj^  to  tlie 
estate  after  lie  has  ceased  to  be  administrator  of  the  estate.  AlBer- 
bach  V.  McCovera,  79  Cal.  2fi8. 

•42  Mon-ltt  v.  Seaman.  (1  X.  Y.  (2  Seld.)  1(>8. 

•>T  Rrijrht  v.  Cnrrie.  .'">  Randf.  4.3.3. 

44  Sheldon  v.  Hoy.  11   IIow.  (X.  Y.)  11. 

»•'■' Arnistroofj:  v.  Flail,  17  llow.  I'r.  7<i;  <-onipare  Pngsly  v.  Aiken, 
11  .\.  Y.  4t»4.  See  further  as  to  ri;rht  of  nction  in  favor  of  execntdi- 
or  adndnlstrafor,  Cnrran  v.  Kennedy,  80  Cal.  98;  Peunie  v.  llildrelh. 
81  Id.  127. 

40  Pal.  fV.de  fiv.  I'm.,  <;  V.\V.\. 

47Tlol,bins  V.  'A'ells,  IS  Alih.  (X.  Y.)  101;  S.  C,  20  ITow.  IT);  1  lioh. 
6G0. 

4«reter8fin  v.  Chendcal  Bank,  32  N.  Y.  (."»  Tiff.)  21;  88  Am,  Dec. 
208. 


^  14*>  GENEUAL  rUINCIPLES.  108 

§  142.  Actions  by  partners.  It  was  the  rule  of  the  common 
law,  luul  the  Siinie  has  reniaiued  unchanged  by  the  Code,  that 
in  aetioiis  for  the  benelit  df  the  partnership,  all  the  partners 
must  be  joined  as  })arties  to  the  actions.  Thus,  all  the  i)art- 
iicrs  should  join  in  an  action  for  the  collection  of  a  partner- 
ship debt,  as  for  the  recovery  of  the  price  of  goods  sold  by 
the  firm,  it  can  not  be  maiutaiued  in  the  name  of  one, 
although  he  is  the  general  agent  of  the  tirni."*"  The  same  rule 
pre^ails  in  an  action  to  recover  against  an  innkeeper  for  the 
loss  of  goods;''*'  or  in  an  action  for  damages  for  a  deceit  in  the 
purchase  of  real  estate  for  partnership  purposes.^^  Whether  a 
dormant  or  special  partner  is  a  necessary  party  plaintiif,  is  a 
question  of  practice  which  has  been  answered  differently  in 
different  states.  Many  of  the  states  have  enacted  statutes 
which  dispense  with  the  joinder  of  either  the  dormant  or 
special  partner.^^  In  New  York,  however,  it  would  seem  that 
a  dormant  partner  is  a  necessary  party  plaintiff. ^^  But  ^hen 
one  partner  is  a  member  of  two  firms,  one  of  which  sues  the 
other,  he  may  elect  to  be  either  plaintiff'  or  defendant.^^  An 
agreement  to  divide  the  gross  earnings  of  a  venture  does  not 
necessarily  constitute  the  parties  to  it  partners.^^  Where  one 
of  the  partners  has  died,  the  rule  under  the  Code  and  at  the  com- 
mon law  was  that  the  right  remained  in  the  surviving  partners 
to  sue  on  the  firm  demands,  without  joining  the  personal 
representatives  of  the  deceased  partner.  The  surviving  part- 
ners might  assign  the  firm  demands,  even  to  the  representatives 

49  Hyde  v.  Yau  Valkenbnrsh,  1  Daly,  416;  Bridge  v.  Payson,  5 
Sandf.  210;  Mayhew  v.  Robinson,  10  How.  Pr.  162;  Briggs  v.  Briggs, 
20  Barb.  477;  1.')  N.  Y.  471;  Sweet  v.  Bradley,  24  Barb.  549;  Halliday 
V.  Doggett,  6  Pick.  359. 

WJ  Needles  v.  Howard,  1  E.  D.  Smith.  54. 

f'l  Medlnu-y  v.  Watson,  G  Met.  246.  A  deed  conveying  title  to  the 
meml)ers  of  a  firm  enables  one  partner  to*  maintain  ejectment 
a.-ainst  an  intruder.    Smith  v.  Smith,  80  Cal.  323. 

fi2  Clark  V.  Miller,  4  Wend.  629;  Clarkson  v.  Carte'r,  3  Cow.  84; 
r.eveck  v.  Shaftoe,  2  Esp.  468;  Mitchell  v.  DoU.  2  Harr.  &  Gill.  171. 

S3  Secor  v.  Keller,  4  Dner,  416;  bnt  see  Hurlbut  v.  Post,  1  Bosw. 
28;  Brown  v.  Birdsall,  2!)  Barb.  549;  Yau  Yaleu  v.  Kussell,  13  id. 
590. 

M  Cole  v.  Reynolds,  18  N.  Y.  76. 

•'■.5  Wheeler  v.  Farmer,  Cal.  Sup.  Ct..  Jnly  Term,  1869,  citing  Patter- 
son v.  Bianchard,  5  X.  Y.  18D;  Story  on  Part.,  §  34,  and  cases  there 
cited  in  note  3. 


109  ACTIONS   FOUNDED    ON   CONTRACT.        §§  143,  144; 

of  the  deceased,  in  which  case  the  assignee  woukl  be  tlie  proper 
party  plaintiff.^^ 

§  143.  Foreclosure  of  mortgages  and  mechanics'  liens.  In 
actions  to  foreclose  mortgages,  all  persons  interested  in  the 
estate  may  be  made  parties.  But  no  person  holding  an  unre- 
corded mortgage,  conveyance  or  lien,  from  or  under  the  mort- 
gagor at  the  commencement  of  the  action,  need  be  made  a  party 
to  an  action  to  foreclose  a  mortgage  or  lien.^^  Materialmen  and 
mechanics  may  join  in  an  equitable  action  to  establish  and  en- 
force their  liens.^^  The  mortgagee  of  a  policy  of  insurance  is 
the  owner,  and  can  alone  maintain  an  action  upon  it.^^  But  the 
party  to  whom  the  loss  is  made  payable  in  the  policy  may  sue  in 
his  own  name,  if  not  assigned,  sold,  or  mortgaged.^^ 

§  144.  Principal  and  agent.  On  contracts  made  by  an  agent, 
either  express  or  implied,  in  the  name  of  his  principal,  the  latter 
is  the  proper  party  plaintiff.  In  such  case  the  agent  can  not 
sue.®^  If,  however,  the  contract,  whether  verbal  or  written,  is 
entered  into  by  the  agent,  in  his  own  name,  without  disclosing 
his  principal,  either  the  principal  or  the  agent  may  sue  thereon. 
And  the  same  is  true  if  the  contract  is  entered  into  by  the  agent 
in  his  own  name,  and  the  fact  of  the  agency  was  known  to  the 
contracting  parties  at  the  time  of  the  making  of  the  contract.^'^ 

56  Roys  V.  Yilas,  18  Wis.  109;  Brown  v.  Allen,  35  Iowa,  306,  311. 

67  Cal.  Code  Civ.  Pro.,  §  720. 

ss  Barber  v.  Reynolds,  33  Cal.  45)7:  Fitch  v.  Creigliton,  24  How. 
1.^.9. 

'>»  Rij)ley  v.  Astor  Ins.  Co.,  17  How.  Pr.  444;  Ennis  v.  Harmony 
Fire  Ins.  Co.,  3  Bosw.  .510;  but  see  Bidwoll  v.  N.  W.  Ins.  Co.,  19 
N.  Y.  179;  Bo<lle  v.  Chenango  Ins.  Co.,  2  id.  53. 

coFrink  v.  Hampden  Ins.  Co.,  45  Barb.  384. 

61  Erirkson  v.  Couipton,  0  How.  Pr.  471;  Union  India  Rubber  Co. 
v.  Tonilinson,  1  E.  D.  Smith,  304;  St.  .John  v.  Griffith,  13  How.  Pr. 
.55);  Fi.sli  v.  Wood,  4  E.  D.  Smitli.  327;  Halgbt  v.  Sahlei-,  30  Barb. 
21S;  Stanton  v.  Camp,  4  id.  274;  Lane  v.  Columbus  Ins.  Co.,  2  C.  R. 
05;  MnekfM-  v.  .\yesJifoid,  1  Cal.  75;  PJiiliips  v.  Hensliaw,  5  id.  509. 
An  agent  wlio  loans  the  money  oi  his  prineipal  in  tlie  name  of 
tiip  prinei|ial  ean  not  himself  stie  to  reeover  it  baek.  Cliin  Kem  Yon 
V.  .\h  Joan.  75  C;il.  124. 

fiSSt.  .Tohn  V.  Criflitl).  2  .M.b.  I'r.  IIiS;  HmII  v.  IM.iine,  14  Oliio  St. 
417;  Iliggins  v.  Senior,  H  M.  \  \\-.  s::i;  Sims  v.  Bon«l,  5  B.  \-  Ad. 
3sn;  Bastable  v.  Poole,  1  (".,  M.  \-  IJ.  410;  Hicks  v.  Whitmore,  12 
Wend,  548;  Talntor  v.  Prendergast,  3  Hill,  72;  Tyler  v.  Erevan, 


§  145  GEXr.RAL    l'UIN(MI'LES.  110 

Thus  an  agent  may  maintain  an  action  on  ai  promissory  note 
payable  to  liimseli'  as  agont.*^^  So  also  the  real  owner  of  goods 
may  maintain  an  action  concerning  them  in  his  own  name,  and 
parol  evidence  is  admissible  to  show  the  agency.*^* 

§   145.  Plaintiffs  in  action  on  promissory  notes.  In  actions 

on  promissory  notes  the  real  party  in  interest,  that  is,  the  i)arty 
liaving  the  right  to  the  money  thereon,  is  the  proper  person  to 
sne.*^  The  holder  of  such  note  is  presumed  to  be  the  owner,  in 
the  absence  of  evidence  to  the  contrary,  and  prima  facie  entitles 
him  to  sue  thereon.^^  The  fact  that  the  plaintiff  has  not  the 
actual  possession  of  the  note  sued  upon  does  not  affect  his  rights 
to  recover  upon  it,  if  he  be  the  real  owner,  although  the  note  is  in 
the  possession  of  the  defendant.^^  Conversely  the  mere  holder 
of  a  note,  without  an  interest  in  or  title  thereto,  can  not  main- 
tain an  action  thereon.^^ 

3  Cush.  261;  Frear  v.  .Tones,  6  Iowa,  109;  ITsparicha  v.  Noble,  13 
East,  232;  Biiffum  v.  Chad  wick,  8  Mass.  103;  Fairtield  v.  Adams. 
k;  Pick.  381;  Morgan  v.  Keed,  7  Abb.  Pr.  215;  Van  Lien  v.  Byrnes, 
1  Hilt.  133;  Ruiz  v.  Norton,  4  Cal.  358;  Thurn  v.  Alta  Tel.  Co.,  15 
id.  472;  Crosby  v.  Watkins,  12  id.  88.  Cases  in  which  agent  may 
sue  in  own  name.  See  Rowe  v.  Rand,  111  Ind.  20(i;  Lndwig  v. 
Gillespie,  105  N.  Y.  653;  Deitz  v.  Insurance  Co.,  31  W.  Va.  851; 
13  Am.  St.  Rep.  909. 

«3  0rd  V.  McKee,  5  Cal.  515;  Considerant  v.  Brisbane,  22  N.  Y. 
389;  Reilly  v.  Cook,  22  How.  Pr.  93. 

64  Union  India  Rubber  Co.  v.  Tomlinson,  1  E.  D.  Smith,  3G4. 

65  Cummings  v.  Mon-is,  3  Bosav.  560;  Selden  v.  Pringle,  17  Barb. 
400;  Hastings  v.  McKiuley,  1  E.  D.  Smith,  273;  Stevens  v.  Hannan, 
86  Mich.  305;  24  Am.  St.  Rep.  125. 

66  Locket  v.  Davis,  3  McLean,  101;  Halsted  v.  Lyon,  2  id.  226; 
Curtis  V.  Sprague,  51  Cal.  239;  McCann  v.  Lewis,  9  id.  246;  cited 
in  Corcoran  v.  Doll,  32  id.  88;  Price  v.  Dunlap,  5  id.  483;  Gushee 
V.  Leavitt,  id.  160;  63  Am.  Dec.  116;  James  v.  Chalmers,  5  Sandf. 
52;  affirmed  in  Lowber  v.  Leroy,  6  N.  Y.  209;  Mottram  v.  Mills,  1 
Sandf.  37;  Wiltsie  v.  Nortliam,  5  Bosw.  428;  Farrington  v.  Park 
Bank,  39  Barb.  645;  Meadowcraft  v.  Walsh,  15  Mont.  544;  Robert- 
S(m  V.  Dunn,  87  N.  O.  191;  Hays  v.  Hathorn,  74  N.  Y.  486;  Herrick 
V.  Bromsidf,  .'>(;  Md.  439. 

67  Selden  v.  Pringle,  17  Barl).  4()8;  Hastings  v.  McKinley,  1  E.  D. 
Smith,  273;  McClusky  v.  Gerhauser,  2  Nev.  47;  Curtis  v.  Sprague, 
51  Cal.  2.39. 

68  Parker  v.  Totten,  10  How.  Pr.  233;  Clark  v.  Phillips,  21  id.  87; 
Prall  V.  Hinchman,  6  Duer,  351. 


Ill  ACTIONS    FOUNDED    ON    CONTRACT.  §§  146-148 

A  party  holding  a  promissory  note,  as  trustee  for  himself  and 
others,  may  recover.^"  So  a  bona  fide  indorsee  may  recover J*^ 
Or  the  indorsee  of  a  note  for  a  consideration  to  be  paid  after  col- 
lection may  maintain  action.'^ 

§  146.  Quo  warranto.  The  claimant  of  an  office  may  join 
with  the  people  as  plaintiff  in  a  proceeding  of  quo  warranto.''^ 

§  147.  Action  by  sheriff.  A  sheriff  who  levies  an  attachment, 
by  virtue  of  the  process  of  attachment,  can  not  maintain  an 
action  in  his  own  name  for  the  recover}'  of  the  debt.'^^ 

§  148.  Action  by  state  or  United  States.  In  the  absence  of 
any  statute  to  that  eff'ect,  the  state  can  not  be  sued.'^'*  In  an  ac- 
tion to  annul  a  patent  for  land,  tlio  state  as  well  as  persons 
having  a  right  to  the  land  may  be  Joined  as  plaintiffs.'^^  If  the 
state  has  no  interest  in  the  matter,  the  action  can  not  be  sus- 
tained."*^ Actions  for  the  recovery  of  an  auctioneer's  duty  are 
properly  brought  in  the  name  of  the  state.'^^  The  United  States 
of  America  can  sue  in  tliat  name  in  chancery  without  putting 
forward  any  public  officer  wlio  coukl  be  called  on  to  give  dis- 
cover}' on  a  cross-bill.'^* 

60  Palmer  v.  (Joodwin,  5  Cal.  4.")8;  Hamilton  v.  McDonald,  18  id. 
128;  Fletcher  v.  Derrickson,  3  Bosw.  181;  but  see  Parker  v.  Totten, 
in  How.  n-.  2;^3;  White  v.  Browu,  14  id.  282;  Clark  v.  Phillips,  21 
id.  87. 

70  Cumniinps  v.  Morris,  3  Bosw.  .5G0;  Potter  v.  Chadsoy,  10  Abb. 
Pr.  14t;;  Hirnmelman  v.  Ilotaliiij?,  40  Cal.  Ill;  .1  Am.  Rep.  GOO; 
Elinquist  v.  Markoe,  45  Minn.  305;  Harpending  v.  iJaniel,  SO  Ky. 
449. 

71  Coinimings  v.  Morris,  25  N.  Y.  G25.  As  to  transferee  without 
consideration,  see  Killmore  v.  Culver,  24  Barb.  6-56.  A  note  in- 
dorsed merely  for  collection  passes  such  title  as  enables  the  indorsee 
to  sue  in  ids  own  name,  as  the  real  parly  in  interest.  Roberts  v. 
Parrisli,  17  Orep.  .58:];  Roberts  v.  Snow,  27  Neb.  425;  Wilson  v. 
Tolson,  7'J  (iSL.  137. 

72  people  V.  Ryder,  12  N.  Y.  4:'.3;  allirmed,  id.  433;  People  v. 
Walker.  23  Barb.  .'504. 

73Snblette  v.  Melhado,  1  ("al.  10.5. 

74  People  V.  Doe  (J.  10;m.  3iJ  Cal.  220. 

7B  People  V.  Mnrtill.  2n  Cal.  3.30;  approved  in  Wilson  v.  Castro, 
31  Id.  427. 

78  People  V.  Stratton,  25  Cal.  244. 

77  State  V.  I'oidteier,  1<;  Cal.  514;  see  Slate  v.  Conklinc,  10  id.  509. 

7HT'nitfd  States  of  Ameriea  v.  Waj,'uer,  I^aw  Re[).,  2  Ch.  App. 
Cas.  582. 


§  149.  Sureties  as  plaintiffs.  A  surety  on  au  undertakiug 
who  luul  paiil  the  ainouiit  oi!  his  liability,  is  entitled  to  recover 
back  the  amountJ'-^  Cosureties  who  pay  the  debt  of  their  priii- 
cii)al  by  giving  their  joint  and  several  notes  therefor,  must  join 
in  a  suit  against  him  for  reimbursement.'^^  A  surety  paying  a 
debt  for  which  several  persons  are  liable  in  distinct  proportions, 
as  principals,  inust  proceed  by  a  several  action  against  each  upon 
an  implied  assiiinpsit.^^ 

§  149a.  Miscellaneous  cases  — real  party  in  interest,  etc.  The 
holder  of  the  legal  title  to  land,  although  a  trustee  for  a  third 
person,  is  the  real  party  in  interest,  and  may  maintain  an  action 
in  his  own  name  to  recover  the  posscssion.*^^  Under  the  Code 
of  Utah  {2  Comp.  Laws,  1888,  §  3 169),  requiring  a  suit  to  be 
brought  in  the  name  of  the  real  party  in  interest,  the  trustees  of 
a  school  district  are  the  proper  parties  plaintiff  in  a  suit  upon 
the  official  bond  of  a  county  collector,  which  runs  to  "  whomso- 
ever it  may  concern,"  when  the  collector  has  failed  to  pay  over 
the  school  funds  of  the  district  which  have  come  into  his  hands.^"'^ 
Under  the  New  Mexico  Practice  Act  of  1880,  §  2,  providing 
that  a  party  in  whose  name  a  contract  is  made  for  the  benefit  of 
another,  may  sue  on  it  in  his  own  name,  the  sheriff  is  the  proper 
party  plaintiff,  in  an  action  on  a  forthcoming  bond.®*  A  stock- 
holder whose  rights  have  been  interfered  ^vith  by  a  violation  of 
trust  on  the  part  of  the  directors  of  a  corporation  may  sue  the 
corporation  and  the  unfaithful  directors  in  his  own  name, 
without  joining  the  other  stockholders,  as  well  as  on  behalf  of 
the  other  stockholders.^  In  a  proceeding  in  insolvency  there 
are  no  parties,  other  than  the  insolvent  himself,  at  the  time 
of  the  adjudication,  or  until  after  one  or  more  creditors  have 
made  proofs  and  filed  their  claims  against  the  insolvent.^® 

TOGan-  V.  Martin,  1  Hilt.  3,58;  see  .lewitt  v.  Crane,  13  Abb.  Pr. 
97;  .35  Barb.  208. 

sODoollttlo  V.  Dwight,  2  Met.  .501;  sec  Chandler  v.  Brainard,  14 
Pick.  28.5;  Appleton  v.  Bascom,  3  Met.  169. 

81  Chipman  v.  Morrill,  20  Cal.  130. 

82  Anson  v.  Townsend,  73  Cal.  415. 

83  Walton  V.  .Tones,  7  Utah,  462. 

84  Wagner  v.  Romero,  3  N.  Mex.  131. 

85  Wickersham  v.  Crittenden,  93  Cal.  17;  and  see  Baker  v.  Ducker, 
79  Cal.  36.5. 

86  Chlnette  v.  Conklin,  105  Cal.  465. 


CHAPTEE  YII. 

PLAINTIFFS  IX  ACTIONS  ARISING  FROM  TORTS. 

§  150.  In  general.  Actions  in  form  ex  delicto  are  for  injuries 
to  the  absolute  or  relative  rights  of  persons,  or  to  personal  or 
real  property.  The  proper  party  plaintiff  in  such  action  is  the 
one  who  has  suffered  the  injury,  he  being  the  real  party  in  in- 
teiest.  This  was  the  rule  at  common  law,  and  it  has  remained 
substantially  unchanged  by  the  Code.  The  principal  changes 
made  by  the  Code,  and  by  statute  in  other  states,  in  I'espect  to 
this  class  of  actions,  are  those  relating  to  the  death  or  injury  to 
the  person  of  adults  or  minors,  caused  by  the  wrongful  act  or 
neglect  of  another,  and  those  relating  to  seduction.  The  Code 
has  also  made  several  important  changes  in  regard  to  parties 
plaintiff  in  this  class  of  actions  by  permitting  assignments  of 
certain  causes  of  actions  sounding  in  tort.^ 

§  151.  For  injuries  to  real  property.  An  injury  to  real  prop- 
erty is  primarily  an  injury  to  the  possession,  for  which  the 
party  in  possession,  unless  he  hold  for  another  as  servant  or 
agent,  should  bring  the  action.  AVhere,  however,  the  injury  is 
of  a  permanent  character,  and  one  affecting  the  inheritance,  the 
remainderman  or  reversioner  may  maintain  an  action,  either  for 
trespass  on  the  case,  or  to  enjoin  the  further  continuance  of  the 
wrongful  act.^  Thus  the  equitable  owner,  in  possession,  may 
maintain  an  action  for  damage  to  the  freehold.^  Or  he  nuiy 
sue  for  trespass."*  On  the  same  principle,  the  owner,  redeeming 
from  a  sale  under  execution,  may  sue  for  waste  intermediate  be- 
tween the  sale  and  his  redemption.'     So  also  an  action  can  be 

1  See  f>ost.  Forms  of  romiilaint:  Assipnees  nnd  Devisees. 

2  1  Chit.  PI.  r,2,  («;  Van  Inicscn  v.  Youhk,  20  Barb.  H:  Lamport  v. 
A])l)Ott,  12  How.  Pr.  .'HO;  T'lrich  v.  M(ral)e,  1  ITllt.  '2M;  Cowand 
V.  Moyors.  fll)  .V.  C.  108;  Dorsey  v.  Mooro,  100  id.  41;  University 
V.  Tiuker,  .",1  W.  Va.  021. 

3IU)o<l  V.  New  York,  etc..  TL  R.  Co.,  IS  Rarb.  SO. 
4  Ilonsee  v.   Hammond,   .'lO  Barb.   Hi);   SafTord   v.   TTynds    id.   Cifi; 
Plorr-o  V.  TIall.  41   id.  142;  Sparks  v.  T.cavy,  10  Abb.  I'r.  3W. 
6  Thomas  v.  Crofut,  14  N.  Y.  474. 
Vol..    1—1.5 


§§  15•.^   153  GENERAL   PRINCIPLES.  114 

luaintainotl  by  the  mort<:jagee  of  real  estate  to  recover  damages 
for  wrongful  and  fraiululeuL  injuries  done  to  the  mortgaged 
property,  by  whicli  the  security  of  the  mortgage  has  been  im- 
paired." But  several  parties  can  not,  in  a  joint  action,  recover 
damage  for  the  use  and  occupation  of  two  or  more  tracts  of 
land  which  they  own  in  severalty.''' 

§  152.  For  injuries  to  personal  property.  In  actions  for  in- 
juries to  personal  property,  or  for  its  conversion,  the  proper  party 
plaint  ill"  is  generally  the  one  having  the  right  to  the  immediate 
possession,  although  in  proper  cases  the  general  owner,  whose 
reversionary  interest  has  been  injured,  may  sue.*  If  there  are 
two  or  more  joint  owners  of  the  property  injured,  they  should 
all  join.^ 

§  153.  In  ejectment.  At  the  common  law,  tenants  in  com- 
mon could  not  join  in  an  action  of  ejectment  under  a  joint 
demise  to  the  normal  jjlaintiff,  although  the  rule  w^as  different  as 
to  the  joinder  of  joint  tenants  and  coparceners.^*^  Under  the 
Codes  which  provide  that  "  all  persons  having  an  interest  in  the 
subject  of  the  action,  and  in  obtaining  the  relief  demanded,  may 
be  joined  as  plaintiffs,"  such  joinder  is  permitted. ^^  Except  in 
California,  Missouri,  and  Nevada,  a  joinder  of  tenants  in  com- 
mon less  than  all  is  not  permitted.  They  must  all  sue,  or  each 
one  separately.^^     In  the  states  named,  however,  a  joinder  of 

fi  Robinson  v.  Russell,  24  Cal.  472. 
TTennant  v.  Pfister,  51  Cal.  .511. 

8  1  Chit.  PI.  61;  Paddon  v.  Williams,  2  Abb.  Pr.  (N.  S.)  88;  Triscony 
V.  Orr,  49  Cal.  612;  Harrison  v.  Marshall,  4  E.  D.  Smith,  271;  Wig- 
gins V.  McDonald,  18  Cal.  126;  Summers  v.  Farish,  10  id.  347; 
affirmed  in  Prader  v.  Purkett,  13  id.  .HOI;  Drowner  v.  Davis,  15  id. 
11;  McGinn  v.  Worden,  3  E.  D.  Smitli,  355;  Hall  v.  Robinson,  2 
Comst.  203;  Kellogg  v.  Church,  3  C.  R.  .53;  Cass  v.  New  York  & 
N.  H.  R.  R.  Co.,  1  E.  D.  Smith,  522;  Rol>inson  v.  Weeks,  1  C.  R. 
(N.  S.)  311;  Van  Hassel  v.  Borden,  1  Hilt.  128;  Wlieeler  v.  Lawson, 
103  N.  Y.  40;  Laing  v.  Nelson,  41  Minn.  521;  Kemp  v.  Seely,  47 
Wis.  687. 

9  Dubois  V.  Glaub,  .52  Penn.  St.  238;  D'Wolf  v.  Harris,  4  Mason, 
515. 

10  1  Chit  PI.  65. 

11  Woolfork  V.  Ashby,  2  Mete.  (Ky.)  288. 

i2Cruger  v.  McLaui-y,  41  N.  Y.  210;  Ilasbrouck  v.  Bunce,  62  id. 
470.  One  of  several  tenants  in  common  may  maintnin  ejectment 
for  the  recovery  of  pos.session  of  the  entire  premises.  Weese  v. 
Barker,  7  Col.  178;  Yancy  v.  Greenlee,  00  N.  O.  317. 


115  ACTIOXS   ARISING    PEOM   TOKTS.  §  154 

less  than  all  is  permitted. ^^  Actions  of  ejectment  must  be  prose- 
cuted in  the  name  of  the  real  party  in  interest/^  and  the  person 
having  the  legal  title  to  the  land,  and  not  the  one  having  the 
equitable  title,  is  such  party.^^  And  to  entitle  him  to  sue  he  must 
be  out  of  possession. ^*^  In  California,  the  heir  may  maintain 
ejectment  when  there  is  no  administration.^''^  The  rule  that 
each  of  several  heirs  may  sue  in  ejectment  for  payment  of  rent 
without  joining  the  others,  applies  to  the  case  of  tenants  in 
common  of  an  incorporeal  hereditament  of  rents  charged  in 
fee,  and  no  reversion;  the  rents  are  apportioned  in  either  case.^^ 
The  grantee  may  bring  an  action  to  recover  lands  conveyed 
while  in  adverse  possession,  in  the  name  of  the  grantor.^^ 
Ix^ssees  in  the  actual  possession  of  land  from  which  they  are 
ousted  by  an  intruder,  without  title  or  color  of  right,  may  main- 
tain ejectment.^  And  it  may  be  maintained  by  the  vendor  of 
land  against  a  vendee  in  possession  under  a  contract  of  purchase, 
who  refuses  to  comply  with  the  terms  and  conditions  of  the  con- 
tract.^^  A  deed  conveying  title  to  the  members  of  a  firm  enables 
one  partner  to  maintain  ejectment  against  an  intruder.^^ 

§  154.  For  injuries  to  the  person.  Injuries  to  the  person, 
although  inflicted  by  the  same  act  and  by  the  same  defendants, 
generally  are  several,  and  each  person  injured  should  sue  alone. 
This  rule  is  not  universal,  as  the  wrongful  act  may  injure  two 
or  more  persons  in  their  joint  relation,  in  which  case  they  may 
join.  Thus,  in  action  for  libel  or  slander  against  a  partner- 
ship the  partners  may  join.^^ 

13  Waff.  Stat.  .5.58,  §  .3;  Cal.  Code  Civ.  rro.,  §  384;  Comp.  Law«J 
Nev.,  1873,  §  1077;  Morenhaut  v.  Wilson,  52  Cal.  209. 

14  Ritchie  V.  Dorlaiul,  0  Cal.  33. 

ir.  Enierif  v.  Pcnniman,  20  Cal.  122;  O'Connell  v.  Dougherty,  32 
Ifl.  402;  fJrecn  v.  .Tordan,  83  Ala.  220;  3  Am.  St.  J{e\).  711. 

i«  Taylor  v.  Cranp,  15  Ildw.  Vr.  :i~>H. 

17  T'pdcRraff  v.  Trask,  IS  f'-.il.  4.5S;  Kstato  of  Woodworth,  31  id. 
004;  Soto  V.  Kroilcr.  10  id.  K7. 

i«  Cnitrer  v.  McClauKlir-j-.  51   Harl).  CA2. 

i»  r.owher  v.   Kelly,  0  Bosw.  404. 

20  Kirsfli   V.   Uriffard.  03  Cal.  310. 

21  Ilicks  V.  Lovell,  CA  Cal.  14;  40  Am.  Rep.  070;  Moyer  v.  Garrett, 
or,  Penn.  St.  370;  Wallare  v.  Maples,  70  Cal.  433;  Coates  v.  Cleaves, 
02  id.  427;  Connolly  v.  Ilin^dey.  S'J  id.  (^12. 

22Sndth  V.  Sndtli,  80  Cal.  I'/S.',. 

2T  1  Chit.  ri.  CA;  Forster  v.  Law.son.  11  Mooro,  .300;  Cook  v. 
Batrhelhir.  3  I'.os.  &  Pul.  1.5r>;  Maitlaiid  v.  (Joldney.  2  East,  426; 
see,  alsf>,  n<itf>  to  Coirytoii   v.   Lltlioliye,  L'  ^\'m.  Smiiid.  301. 


§  155  GENERAL  PRINCIPLES.  11 G 

§  155.  The  same  —  injuries  to  married  woman.  At  the  com- 
mon law,  for  injuries  to  a  married  woman,  the  right  of  action 
was  in  the  husband,  although  in  certain  cases  the  wife  must 
join.  As  stated  by  C'hitty,  the  rule  was  substantially  this: 
'*  If  the  cause  of  action  survive  to  the  wife,  she  must  be  joined 
as  plaintitf;  as  where  the  injury  was  before  marriage;  or,  if  it 
was  inflicted  after  marriage,  it  be  of  such  a  nature  as  to  bring 
personal  suffering  to  the  wife,  or  if  it  injures  her  personally; 
as  a  battery,  false  imprisonment,  or  slander  by  words  action- 
able per  se?*  And  the  same  rule  prevailed  in  regard  to  in- 
juries to  the  wife's  property.  If  the  cause  of  action  survived 
to  her,  she  should  join,  otherwise  not.^  The  Code  has  made 
sweeping  changes  in  regard  to  the  common-law  rules  concern- 
ing the  joinder  of  husband  and  wife.  In  California  the  Code 
provides  that  "  when  a  married  woman  is  a  party,  her  husband 
must  be  joined  with  her,  except  —  1.  When  the  action  concerns 
her  separate  property,  or  her  right  or  claim  to  the  homestead 
property,  she  may  sue  alone;  2.  When  the  action  is  between 
herself  and  her  husband  she  may  sue  or  be  sued  alone;  3.  When 
she  is  living  separate  and  apart  from  her  husband,  by  reason 
of  his  desertion  of  her,  or  by  agreement  in  writing  entered  into 
between  them,  she  may  sue  or  be  sued  alone."  "^     In  constru- 

24  1  Chit.  PI.  73,  and  note  .3;  Bliss  on  Code  PI.,  §  27. 

25  1  Chit.  PI.  75. 

26  CaL  Code  Civ.  Pro.,  S  370.  Similar  statutes  have  been  passed 
In  all  tlie  Code  states.  Such  statutes  differ  somewhat  in  their  de- 
tails, but  their  jreneral  results  are  substantially  the  same.  Corap. 
Laws  Nev.,  §  1070:  Rev.  &  Comp.  Laws  of  Idaho,  §  7.  In  Iowa 
a  married  woman  may  in  all  cases  sue  and  be  sued,  without  joining 
her  husband  with  her,  to  tlie  same  extent  as  if  she  were  luimarried, 
and  an  attachment  or  judgment  shall  be  enforced  by  or  against  her 
as  if  she  wei-e  a  single  woman.  Code  of  Iowa,  §  2.502.  The  Oregon 
Code  (§  30)  is  the  same  as  section  370  of  the  California  Code, 
except  that  the  third  subdivision  is  omitted,  and  the  clause  "  and 
in  no  case  need  she  prosecute  or  defend  by  a  guardian  or  next 
friend,"  is  added.  Ohio  Code  (§  28)  is  as  follows:  '•  Where  a  mar- 
ried woman  is  a  pai*ty,  her  hnsl)and  must  be  joined  witli  her,  except 
that  wliere  the  action  concerns  lier  separate  property,  or  is  l)etween 
herself  and  husband,  she  may  sue  or  be  sued  alone;  and  in  every 
such  case  her  separate  property  shall  be  liable  for  any  judgment 
rendered  therein  against  her  to  the  same  extent  as  would  the  prop- 
erty of  her  husband  were  the  judgment  rendered  against  him;  but  in 
no  case  shall  she  be  required  to  prosecute  or  defend  by  her  next 
friend."  Formerly  the  Code  of  New  Yorlv  (S  114)  was  the 
same  as  the  above  section  of  the  Ohio  Code,  omitting  the  clause 


117  ACTIONS   ARISING    FROM   TORTS.  §  155 

ing  these  provisions  of  the  Code,  it  has  been  held  that  in  actions 
for  injuries  to  the  wife's  person  or  character,  she  must  join 
with  her  husband;^^  while,  for  injuries  to  her  separate  estate, 
whether  the  same  arise—from  deceit,  trespass,  or  conversion, 
she  may  sue  alone,  or  her  husband  may  be  joined  with  her, 
as  the  provision  authorizing  her  to  sue  alone  has  generally 
been  held  permissive,  except  in  those  states  which  absolutely 
require  the  action  to  be  prosecuted  by  the  wife  alone.^  So, 
also,  if  the  cause  of  action  arises  from  contract  the  wife  may 
sue  alone  if  it  concerns  her  separate  estate,  or  her  husband 
may  join  with  her  in  such  action. 

There  is  no  statutory  limitation  as  to  the  kind  of  actions 
that  may  be  maintained  by  the  wife  when  they  concern  her 
separate  property,  or  are  against  her  luisband.  Thus,  a  mar- 
ried woman  may  sue  alone  on  a  promissory  note  forming  a  part 
of  her  separate  estate,^  although  such  note  was  given  to  her 

In  rejrard  to  the  liability  of  her  separate  property;  but  the  new 
Code,  passed  June  2,  187G,  has  the  following  provision,  section  450: 
"  In  an  Jiction  or  special  proceeding,  a  married  woman  appears, 
prosecutes,  or  defends,  alone  or  joined  with  other  parties,  as  if 
she  was  single."  Minnesota,  Kansas,  and  Nebraska  have  provisions 
similar  to  those  of  New  York  and  Iowa. 

27  Pomeroy's  Remedies.  §  2.37:  and  see  McFadden  v.  Santa  Ana, 
etc..  Ky.  Co..  87  Cal,  4a");  Tell  v.  Ciibson,  (ifi  id.  247;  Neale  v.  Depot 
Ry.  Co.,  ft4  id.  42.".;  Lamb  v.  Harbangh,  105  id.  680;  Hawkins  v. 
Railway  Co.,  .3  Wash.  St.  592;  28  Am.  St.  Rep.  72. 

2«  Palmer  v.  Davis.  28  N.  Y.  242;  Newbeiy  v.  Garland,  31  Barb. 
121;  Ackley  v.  Tarbox,  31  N.  Y.  5(>4;  Van  Maren  v.  Johnson.  15  Cal. 
.308;  Kays  v.  Phelan,  19  id.  128;  Calderwood  v.  Pyser,  31  id.  333; 
Corcoran  v.  D..11,  .32  id.  90;  Sjjarsnr  v.  Heard,  90  id.  221.  In 
Calderwood  v.  I'ysei-.  supra,  it  was  held,  "  that  an  action  which 
concerned  the  scjiarate  projjcrty  of  the  wife,  and  in  which  the  hus- 
band and  wife  joined,  did  not  abate  in  consequence  of  a  divorce; 
the  jiarlies  survived  the  divorce,  and  tlie  cause  <if  action  survived. 
The  husband  was  jfiined,  not  because  he  owned  the  i>roperty,  but 
beeause  of  his  relation  to  the  other  jilaintifT.  His  relation  ceased  by 
tiie  divor«-e.  but  the  right  of  action  continued  in  the  wife,  where  it 
was  before.  But  su])i>oslng  the  Interest  in  the  action  terminated  as 
to  the  husband  ujion  the  entry  of  tlie  judgment  for  divorce,  there 
was  still  the  same  cause  of  action  In  favor  of  the  wife,  the  real 
party  in  interest,  which  she  was  entitled  to  prosecute  in  her  own 
name,  witliout  joining  a  persfui  whom  she  afterwards  maiTied,  and 
the  most  that  «(.uld  be  said  was  that  tliere  was  a  misjoinder  of 
jiarties  iilaliitifr  fn.m  tliat  time  forward;  and  that  objeflion,  not 
having  been  taki-n  either  by  demin-rei-  or  answer,  was  waived." 

28  Corcoran  v.  Doll,  32  Cal.  82;  Smart  v.  Comstock,  24  Barb.  411. 


§  165  GENERAL   PRINCIPLES.  118 

by  her  husband  before  marriage,  and  he  is  the  party  sought 
to  be  held  liable  in  the  aetion.^*^  Nor  is  it  necessary,  under 
this  section,  for  the  wifo  to  sue  by  a  prochciii  ami.'-^^  In  New 
York  a  married  woman,  it  seems,  cnii  not  sue  her  husband  for 
assault  and  battery;^^  nor  for  libel  or  slander;^^  nor  in  eject- 
ment.^'* J>ut  she  may  sue  him  for  alimony,  without  bringing 
an  action  for  divorce.^'^  In  California,  the  possession  of  either 
of  the  spouses  as  to  the  community  property  is  the  possession 
of  the  other,  and  neither  can  sue  the  other  for  the  conversion 
thereof.^^  The  provision  of  the  section  authorizing  the  wife 
to  be  sued  alone  when  living  separate  and  apart  from  her 
husband,  has  no  application  to  a  mere  temporary  absence  of 
the  wife  from  her  husband.  There  must  have  been  an  aban- 
donment on  the  part  of  the  husband  or  wife,  or  a  separation 
which  was  intended  to  be  final. ^'^  In  some  jurisdictions  a  mar- 
ried woman  can  maintain  an  action  alone  for  an  injury  to  her 
person,  and  the  husl)and  is  not  a  necessary  party  to  such 
action. ^^  A  married  woman  may  maintain  an  action  in  her 
own  name  without  joining  her  husband  to  recover  possession 
of  tlio  homestead  property.^^  And  she  may  sue  alone  to  re- 
cover money  loaned  by  her  which  is  her  separate  property. ^^ 
So,  if  a  wife  deserts  her  husband,  but  before  the  expiration 
of  the  statutory  period  required  to  make  the  desertion  a  cause 
of  divorce,  offers  in  good  faith  to  return  and  resume  the  per- 
formance of  her  marital  duties,  and  he  refuses  to  receive  her, 

30  Wilson  V.  Wilsou,  3(1  Cal.  447;  9.5  Am.  Dec.  194. 
81  Kashaw  v.  Kashaw,  3  Cal.  312. 

32  Lonjrentlj'ke  v.  T.,on£ren(lyke,  44  Barb.  366. 

33  Froethy  v.  Freethy,  42  Barb.  641. 

34  Gould  V.  Gould,  29  How.  Fr.  441.  But  it  is  now  held  she  may 
sue  her  husband  in  ejectment  to  recover  the  possession  of  her 
separate  real  estate.  Wood  v.  Wood,  83  N.  Y.  .57.5:  also,  Crater  v. 
Crater,  118  Ind.  521;  10  Am.  St.  Rep.  161;  Gibson  v.  Herriott,  45 
Ark.  85,  96, 

35  Galland  v.  Galland,  38  Cal.  265. 

3C  Pchuler  v.  Savings  &  Loan  Soe.,  64  Cal.  397. 

37  Tobin  V.  Galvin,  49  Cal.  36. 

38  Bennett  v.  Bennett,  116  N.  Y.  .584;  City  of  Portland  v.  Taylor, 
125  Ind.  522;  Westlake  v.  Wostlako,  .34  Oliio  St.  621;  32  Am.  Bop. 
397.  So  in  Kansas.  Mehrlioff  v.  Mehrhoff,  26  Fed.  Rep.  13.  Ten- 
der the  Alabama  statutes  (Code,  §  2,347),  the  wife  must  sue  alone 
for  all  injuries  to  her  person.     Barker  v.  Railway  Co.,  92  Ala.  314. 

39  Mauldin  v.  Cox,  67  Cal.  387. 

*o  Evans  v.  De  Lay,  81  Cal.  103. 


119  ACTIONS   ARISING    FROM   TORTS.  §  156 

such  refusal  amoimts  to  desertion  on  •  his  part,  and  she  can 
in  Calirornia  sue  alone  to  recover  damages  for  personal  in- 
juries.'*'  The  husband  is  held  to  be  the  proper  plaintiff  in 
an  action  to  recover  the  proceeds  of  his  wife's  labor,  in  the 
absence  of  an  agreement  between  them  making  such  proceeds 
her  separate  property.'*^ 

§  156.  For  injui'ies  to  minor  child  or  servant.  Both  at  the 
common  law  and  under  the  Code,  the  master  may  recover 
damages  for  injuries  to  his  servant  or  minor  child.  The  gist 
of  the  cause  of  action  is  the  loss  of  the  service  of  the  servant 
or  child.  Under  the  Code  it  is  provided  that  a  "  father,  or 
in  case  of  his  death  or  desertion  of  his  family,  the  mother,  may 
maintain  an  action  for  the  death  or  injury  of  a  minor  child, 
and  a  guardian  for  the  death  or  injury  of  his  ward,  when  such 
death  or  injury  is  caused  by  the  wrongful  act  or  neglect  of 
another.  Such  action  may  be  maintained  against  the  person 
causing  the  injury  or  death,  or  if  such  person  be  employed 
by  another  person,  who  is  responsible  for  his  conduct,  also 
against  such  other  person."'*^  Under  this  section  the  minor  may 
sue  by  his  guardian  and  recover  for  the  injuries  he  has  sus- 
tained; or  the  parent  may  sue  and  recover  for  the  damages 
sustained  by  him.  If  the  minor  sue,  he  can  not  recover  for 
the  special  damages  sustained  l)y  the  parent;  and  the  parent 
may  bring  and  sustain  his  action  for  such  special  damages, 
notwithstanding  the  recovery  by  the  child.  If  the  child  do 
not  sue,  the  parent  can  not,  in  the  same  action,  recover  his 
special  damages,  and  also  the  damages  whicli  the  cliild  might 
recover,  if  he  brouglit  suit  l)y  his  guardimi.  the  action,  when 
brought  l)y  the  parent,  being  one  of  that  class  which  is  per- 
mitted to  be  brought  without  joining  the  person  for  whose 
benefit  it  is  brought,  and  unless  the  action,  when  brought  by 
the  parent,  is  to  l)e  regarded  as  for  the  l)en('!it  <>f  the  minor, 
there  would  seem  to  ])e  lU)  f)bstaf'lo  in  n'rovciiiig  in  an  action 
brf)Uglil  by  the  child.  In  actions  I'nv  injuries  resulting  in 
death,  the  measure  of  damages  is  left  to  the  sound  discretion 
of  tlu."  jury.  Tender  the  Colorado  siiitutc  (den.  Laws,  1ST7, 
p.   313),   if  the  deceased   Ijc   a   minor,   the   fatlier  and   mother 

41  Aiidrows  V.  Ifiniynti.  (;.■■,  f";ii.  flit). 

42  Mf.sf Icy  V.  Tlenoy,  i\r>  Cal.  4TH. 

43  mi  Poflp  riv.  Pro..  5  .'{7(1;  see  Muiiro  v.  DredKinf,'  Co..  84  Cal. 
515;  IR  Am.  St.  Kep.  248. 


§157  GENEKAL  PRINCIPLES.  120 

may  join  in  the  suit  aiul  oaeli  sluill  have  an  equal  interest  in 
the  jiul<;uiont.  lUit  tlie  joining  of  tlie  father  and  mother  is 
permissive,  not  imperative,  and  either  may  sue  alone."  Under 
the  California  statute  (Code  t'iv.  I'ro.,  §  377),  an  action  for  an 
injury  resulting  in  death  can  be  brought  by  either  the  heirs 
or  the  personal  representative,  but  separate  actions  can  not  be 
brought  or  maintained  by  botli,  and  a  former  recovery  by  an 
executor  may  be  pleaded  and  proved  in  bar  to  an  action  sub- 
sequently brought  by  the  heirs  of  one  killed  through  the  negli-t 
gence  of  the  defendant.'*^ 

§  157.  For  seduction.  The  Codes  have  made  great  changes 
in  some  of  the  states  in  the  rules  of  the  common  law  in  regard 
to  the  liabilities  for  seduction.  Section  37-i  of  the  California 
Code  provides  that  ''an  unmarried  female  may  prosecute,  as 
plaintifT,  an  action  for  her  own  seduction,  and  may  recover 
therein  such  damages,  pecuniary  and  exemplary,  as  are  assessed 
in  her  favor."  ^^  Section  375  provides  that  "a  father,  or  in 
case  of  his  death  or  desertion  of  his  family,  the  mother,  may 
prosecute  as  plaintiff  for  the  seduction  of  the  daughter,  and 
the  guardian  for  the  seduction  of  the  ward,  though  the  daughter 
or  ward  be  not  living  with  or  in  the  seiwice  of  the  plaintiff 
at  the  time  of  the  seduction  or  afterwards,  and  there  be  no 
loss  of  service."  Neither  of  these  sections  imposes  any  re- 
strictions upon  the  right  to  maintain  the  action.  The  un- 
married female,  whatever  her  age,  whether  living  with  her 
father  or  guardian,  or  not,  may  maintain  the  action.  Nor 
does  the  right  of  the  father  or  guardian  depend  upon  the 
question  whether  the  female  is  living  with  or  in  the  service 
of  the  father  or  guardian.  Some  questions  as  to  the  measure 
of  damages,  and  the  right  to  maintain  several  actions  for  the 
same  seduction,  arise  which  are  not  free  from  difficulties.  If 
the  female  who  has  been  seduced  be  at  the  time  a  minor,  and 
living  with  her  father,  the  loss  of  service  accrues  to  him. 
Can  she  recover  for  that?  May  she  maintain  the  action  and 
recover  all  other  damages,  and  her  father  maintain  a  separate 
action  and   recover  for  the   loss   of   services?     If  so,   can   he 

44  Pierce  v.  Conners,  20  Col.  178. 

4''  Ilartipan  v.  Routhorn  Pac.  Ry.  Co.,  86  Cal.  142. 

41  As  to  the  meaning  of  the  word  "  seduction  "  as  used  in  this 
section  of  the  Code,  see  Marshall  v.  Taylor,  98  Cal.  55;  35  Am.  St 
Rep.  144. 


121  ACTIONS    ARISING    FROM    TORTS.  §  157 

recover  anything  more  unless  he  has  incurred  expenses  directly 
caused  by  the  seduction?  If  the  seduction  occurs  after  she 
has  attained  her  majority,  can  the  father  maintain  any  action 
therefor?  If  he  can,  do^s  the  recovery  go  for  his  benefit,  or 
only  for  the  daughter's?  Would  a  recovery  by  him  bar  an 
action  brought  by  the  daughter?  Or  a  recovery  by  the  daugh- 
ter bar  an  action  brought  by  the  father?  Section  3339  of  the 
Civil  Code  declares,  '*  the  damages  for  seduction  rest  in  the 
sound  discretion  of  the  jury."  Section  49  of  the  Civil  Code 
provides,  "the  rights  of  personal  relation  forbid:  3.  The  se- 
duction of  a  wife,  daughter,  orphan  sister,  or  servant."  The 
rule  in  relation  to  actions  for  torts  is,  that  "  the  person  who 
sustains  an  injury  is  the  person  to  bring  an  action  for  the 
injury  against  the  wrongdoer."  *^ 

Under  the  Penal  Code  of  California  seduction  is  a  felony. 
At  common  law  no  action  could  be  sustained  for  damages  in 
cases  where  the  wrong  amounted  to  a  felony.  These  pro- 
\'isions  of  the  Code  of  Civil  Procedure,  however,  give  the  right 
to  maintain  the  action,  but  whether  the  common-law  rule  that 
an  action  based  upon  a  tort  can  not  be  maintained  by  any 
one  who  has  not  suffered  legal  damages,  is  changed  by  these 
provisions,  is  not  free   from  difficulty. 

It  is  true  that  formerly  the  woman  wlio  was  seduced  could 
not  maintain  the  action,  having  (on  the  ground  volenti  non  fit 
injuria)  suffered  no  legal  wrong;  and  the  person  who  can  bring  an 
action  is  the  parent  or  master,  who  sues,  in  theory,  at  least,*'  for 
the  wrong  to  him,  viz.:  the  loss  of  service.  The  action,  therefore, 
could  be  brought  by  any  one  who  stood  in  the  relation  of  master 
to  the  woman  seduced,  whether  he  were  merely  tlie  master,  or 
tlio  parent,  brother,  or  other  near  relative  of  the  woman.  Nor 
was  it  any  objection  that  the  woman  was  of  age  at  tlie  time  of  the 
Reduction:  and  it  has  been  held,  in  a  case  where  sbo  lived  with 
her  father  and  anted  as  bis  servant,  no  objection  to  the  action 
that  she  was  a  married  woman. •*"  But  service  of  some  sort  was 
held  to  be  al)Solutely  es.tyjntial  Wliorc.  tlicrefore,  the  daugbter 
was  living  independently,  and  supporting  herself  and  tlie  family, 

H7  TMrpy  on  rartlPR.  .^''.O. 

4^  TlariKT  V.  I.uffkln,  7  I'..  iV:  (\  ?,H1.  T'lidpr  tlio  Town  Cch\o  fS  2.'">5fi), 
no  aftlon  rnn  he  tnalntaliipd  by  a  paront  for  the  seduction  of  an 
adult  child.     Dodd  v.  Forht,  72  Iowa,  579. 


g  157  GENERAL   PRINCIPLES.  122 

neither  tlio  parent  nor  any  one  else  could  maintain  an  action  for 
her  seduction."*'' 

Under  section  375  of  the  Calii'ornia  Code,  it  is  plain  that  the 
"  service,"  which  was  formerly  essential,  is  dispensed  with  as  a 
ruuiidation  of  the  right  of  the  parent  to  sue;  and  w^  may,  there- 
fore, conclude  that  the  parent  has  the  right  now,  independently 
of  any  loss  of  services,  to  recover  to  the  same  extent  a,s  formerly. 
If  this  Ijc  true,  it  would  follow  that  a  recovery  by  the  parent 
would  be  a  bar  to  an  action  brought  by  the  daughter;  and  that 
a  recovery  by  the  daughter  would  be  a  bar  to  an  action  brought 
by  the  parent  for  more  than  special  damages  (if  any  were  sus- 
tained) which  from  their  nature  could  not  have  been  included  in 
the  former  recovery.  Section  34  of  the  Oregon  Code  is  identical 
with  section  375  of  the  California  Code,  but  section  35  of  the 
Oregon  Code  restricts  the  right  of  an  unmarried  female  to  sue 
for  her  own  seduction  to  those  over  twenty-one  years  of  age; 
and  further  provides  that  the  prosecution  of  an  action  to  judg- 
ment by  the  father,  mother,  or  guardian,  as  prescribed  in  sec- 
tion 34,  shall  be  a  bar  to  an  action  by  such  unmarried  female. 
Under  section  450  of  the  New  York  Code  of  Civil  Procedure,  a 
wife  may  maintain  an  action  in  her  own  name  and  for  her  own 
benefit,  without  Joining  her  husband  as  a  party,  against  one 
who  has  enticed  him  from  her,  alienated  his  affection,  and  de- 
prived her  of  his  society.^*^ 

49  Manly  v.  Field,  29  L.  J.,  79  C.  P.,  7  C.  B.  (N.  S.)  9G.  It  has 
been  held  that  a  father  may  recover  for  the  loss  of  sei-vice  of  his 
infant  dau.ehter  caused  by  her  being  gotten  with  an  illegitimate 
child,  although  she  was  not  at  the  time  actually  in  his  service, 
provide<l  he  still  retained  the  legal  right  to-  reclaim  such  service. 
Laverj'  v.  Crooke.  r>2  AVis.  r,12;  r^S  Am.  Eep.  7(;.S;  and  see  Lawyer  v. 
Fritcher,  130  N.  Y.  239:  Simpson  v.  Grayson,  .54  Ark.  404;  20  Am. 
St.  Rep.  52.  So,  an  imbecile  daughter  over  the  age  of  twenty-one 
years  is  to  be  regarded  as  a  minor,  for  the  loss  of  whose  services 
by  reason  of  seduction  the  father  may  recover,  so  long  as  she  re- 
mains at  his  home  or  under  his  control.  Hahn  v.  Cooper,  84  Wis. 
629. 

f^o  Bennett  v.  Bennett,  110  X.  Y.  584.  So,  in  Ohio.  Westlake  v. 
Westlake,  34  Ohio  St  021;  see  §  1883,  n.,  post, 


CHAPTER  YIII. 

DEFENDANTS  IN  ACTIONS  AEISING  FROM  CONTRACTS,  TORTS  AND 
IN   EQUITABLE   ACTIONS. 

§  158.  At  the  common  law,  all  persons  who  were  jointly 
liable  un  the  same  contract  or  obligation  must  be  joined  in  an 
action  thereon.  In  determining  whether  such  liability  was 
joint,  the  rule  was  that  "  several  jjersons  contracting  together 
with  the  same  party  for  one  and  the  same  act  shall  be  regarded  as 
jointly,  and  not  individually  or  separately,  liable,  in  the  absence 
of  any  express  words  to  show  that  a  distinct  as  well  as  entire 
liability  was  intended  to  fasten  on  the  promisors."^  Tliis  com- 
mon-la.w  rule  has  been  changed  in  most  if  not  in  all  of  the 
states  which  have  adopted  Codes  of  Procedure.  In  California,  the 
Civil  Code  provides  that  "  when  all  the  parties  who  unite  in  a 
promise  receive  some  benefit  from  the  consideration,  whether 
past  or  present,  their  promise  is  presumed  to  'be  joint  and 
several."^  Tn  regard  to  the  joinder  of  such  parties  the  Code 
provides  that  any  person  may  be  made  a  defendant  wlio  has 
or  claims  an  interest  in  the  controversy  adverse  to  the  plaintiff, 
or  wlio  is  a  necessary  party  to  a  complete  determination  or  set- 
tlement of  tlie  question  involved  therein.  And  in  an  action  to 
determine  the  title  or  right  of  possession  to  real  property  which, 
at  thf  time  of  the  commencement  of  the  action,  is  in  tbc  pos- 
session of  a  tenant,  the  landlord  may  be  joined  as  a  party  de- 
fendant,""'' and  "  of  tlie  parties  to  the  action,  tliose  who  are 
united  in  interest  must  be  joined  as  plaintiffs  or  defendants; 
but  if  the  consent  of  any  one  who  should  have  joined  as  plain- 
tiff can  not  be  obtained,  he  may  be  made  a  defendant;"^  and 

1 1  ciiit.  ri.  n. 
spivii  cvhIo.  s  ^c>r,9. 

•Tal.  f'ode  f'iv.  I'ro..  §  .".Tf»:  1  Vnii  Sniitv.  PI.  Eq.  Pr.  Tt;  N.  Y. 
rv.df.  m77.  8  447:  1  Van  Santv.  T'l.  Il!»:  Nash's  Ohio  Tl.,  §  r^n:  T>aw8 
of  Iowa,  §  27<;L';  Or(-;:on.  8  44»;  Idalio,  §  i:^;  Nevada,  5  13;  Arizona, 
S  1.3. 

*  Tal.  Trxle  Tiv.  Pro..  §  .?82.  Similar  provisions  arc  found  in  tlie 
Codps  of  oflipp  statr's.  When  each  of  the  defcndniifs  is  allei:c<l  to 
liavf  hern  in  some  way  fonnceted  witli  tlie  transaelion  comidainecl 


5j^  loi»-162  GENERAL    rillNCirLES.  124 

persons  severally  liable  upon  the  same  obligation  or  instrument, 
inohuling  Die  i)arties  to  bills  of  exchange  and  promissory  notes, 
iiml  t^uivtios  on  the  same  or  separate  instruments,  may  all  or 
any  ol'  them  be  included  in  the  same  action,  at  the  option  of 
the  plaintiff." 

§  159.  Annulling  patent  to  land.  In  an  action  to  set  aside  a 
patent  {o  In nd.  the  patentee  is  a  necessary  party  defendant.  His 
riglits  can  not  be  determined  or  impaired  in  any  side  suit  be- 
tween tliird  iiarties.^ 

§  160.  Actions  against  assessors.  In  Massachusetts,  asses- 
sors are  jointly,  as  well  as  severally,  liable  for  illegally  assessing 
and  collecting  a  tax.^ 

§  161.  For  breach  of  contract.  All  persons  materially  inter- 
ested in  the  subject-matter  of  the  suit  should  be  made  parties, 
either  plaintiti  or  defendant.'^  But  in  an  action  for  damages 
for  breach  of  contract,  only  the  parties  to  the  contract  should 
be  joined  as  defendants.*  And  in  a  suit  to  enforce  a  covenant 
not  to  carry  on  a  certain  trade,  the  original  covenantor  is  not 
a  proper  party  if  he  has  parted  with  all  interest  and  is  not  in 
fault .^  It  is  held  in  Massachusetts  that  heirs  are  jointly  charge- 
able, as  assigns  on  a  covenant  of  their  ancestor  which  runs 
with  the  land  that  descends  to  them.^^  So,  with  guardians 
severally  appointed  for  different  heirs.^^  In  New  York,  per- 
sons severally  liable  should  not  be  joined  in  the  same  action 
as  di^fendants.^- 

§  162.  Actions  against  executors  and  administrators.  In  Cali- 
fornia the  executor  and  administrator  of  a  decedent  is  entitled 

of,  and  complete  justice  can  not  be  done  in  the  absence  of  either 
of  thoni.  there  is  no  improper  joinder  of  parties.  Wiclversham  v. 
Crittenden,  93  Cal.  17. 

>'■' Boffps  V.  INIorced  Tklininsr  Co..  14  Cal.  279;  approved  in  Yount  v. 
Howell,  14  id.  409;  Tioche  v.  Paul,  22  id.  111. 

«Witliington  v.  Eveleth,  7  Pick.  lOG. 

7  Burton  V.  Lies,  21  Cal.  87;  afRrmed  in  Carpentier  v.  Williamson, 
2.')  id.  101;  Wilson  v.  Castro,  31  id.  420. 

s  Barber  v.  CazaliP.  .30  Cal.  92. 

f»  Clements  v.  Welles.  li.  II.,  1  Eq.  200. 

1^1  Morse  v.  Aldrifli,  1  Met.  .544. 

11  Doufjline  v.  Emery,  9  Met.  03. 

12  jje  Pvoy  V.  Sliaw,  2  Duer,  020:  Phalen  v.  Dingee,  4  E.  D.  Smith, 
379;  Spencer  v.  Wheclock,  11  N.  Y.  Leg.  Obs.  329. 


125  ACTIOXS   AKISIXG    FROM    COXTKACTS,  ETC.  §  Hj2 

to  the  possession  of  the  entire  estate  of  the  deceased,  both  real 
and  personal.  The  Code  provides  that  ''  actions  for  the  re- 
covery of  any  property,  real  or  personal,  or  for  the  possession 
thereof,  or  to  quiet  titl?  thereto,  or  to  determine  any  adverse 
claim  thereon,  and  all  actions  founded  upon  contracts  may  be 
maintained  by  and  against  executors  and  administrators  in  all 
cases  in  which  the  same  might  have  been  maintained  by  or 
against  their  respective  testators  or  intestates."  ^^  "Any  per- 
son, or  his  personal  representatives,  may  maintain  an  action 
against  the  executor  or  administrator  of  any  testator  or  in- 
testate who  in  his  lifetime  has  wasted,  destroyed,  taken,  or 
carried  away,  or  converted  to  his  own  use,  the  goods  or  chattels 
of  any  such  person,  or  committed  any  trespass  on  the  real  estate 
of  such  person."  ^*  And  "  in  actions  for  or  against  ex- 
ecutors or  administrators  it  is  not  necessary  to  join  those  as 
parties  to  whom  letters  were  issued,  but  who  have  not  quali- 
fied." ^^  The  Code  also  contains  minute  provisions  requiring 
a  creditor  of  a  deceased  to  present  his  claim  against  the  estate 
to  the  executor  or  administrator  of  the  deceased  for  allowance 
before  he  can  maintain  an  action  thereon. ^"^  In  construing 
these  provisions  of  the  Code,  it  has  been  repeatedly  held  that 
the  general  right  to  sue  an  executor  or  administrator  was  taken 
away  by  statute,  except  in  cases  where  the  creditor's  claim 
lias  been  properly  presented  and  rejected.^'^  If  an  executor 
lias  come  into  possession  of  the  trust  fund  or  its  substitute, 
so  that  the  same  can  be  identified,  he  can  be  held  to  account 
and  charged  as  trustee,  upon  the  same  terms  as  his  testator 
held  the  trust,  and  the  relation  of  trustee  and  cestui  que  trust 
is  added  to  that  of  executor.^**  Tu  suit  for  specific  perform- 
ance of  testator's  contract  for  sale  of  lands,  the  executor  of  de- 
ceased should  join  as  plaintifF.^**  In  an  action  for  specific  per- 
formance again.st  heirs  on  tlioir  ancestor's  contract,  where 
flamagos   arc   domauflod    in    ibo   alternative,   the   executors    or 

lacal.  ro<lf'  riv.  Tro.,  §  1.-.82. 

"Id..  §  l.^.K4. 

IS  Id.,  §  1.^87. 

ifl  Spo  this  Kuhjpft  (lisniRSf'd  under  Forms  of  Complaints;  Actions 
by  Exfviifors  and  Adiiiinislrafors. 

17  ElllB«-n  V.  Hallnrk,  r,  fa).  .''.0.'',;  ITentsfh  v.  Porter,  10  Id.  559; 
Eustarp  v.  .Tahns,  .''.S  jd.  .'?. 

iR  I.athrop  v.  Rampfon.  P.\  Pal.  17;  Wl  Am.  r>ec.  141;  Fox  v.  Tay, 
89  Cal.  .^''.9;  23  Am.  St.  Hep.  474. 

10  Adams  v.  Oroen,  .34  Barb.  170;  soe  Cal.  Codo  Civ.  Pro.,  iS  1.582. 


i^  103  (il^NEUAL    riUNCU'LEtJ.  126 

administrators  should  be  made  parties,  or  no  judgment  can  be 
taken  I'or  such  damages.^  In  i^evada  a  joint  action  can  not 
be  maintained  against  the  survivor  and  the  administrator  of  a 
deceased  maker  of  a  promissory  note;^^  and  the  same  would 
seem  to  bo  the  rule  in  Ualii'ornia.  The  reason  assigned  for  this 
rule  is  that  the  judgment  against  the  survivor  would  have  to  be 
dc  bonis  propriis,  and  against  the  executor  or  administrator 
dc  bonis  test  at  or  is  ?^ 

It  is  a  general  rule  of  law  that  no  action  will  lie  against  nn 
executor  or  administrator  to  which  his  testator  or  intestate  was 
not  liable.-^  The  estate,  represented  by  a  person  upon  whom 
the  duty  of  keeping  the  premises  in  repair  is  cast,  is  no  more 
iial)le  for  his  neglect  of  that  personal  duty  than  it  would  be  for 
a  fine  which  might  be  imposed  upon  him  by  a  criminal  court 
for  an  assault  and  battery  committed  by  him  while  in  possession 
of  such  estate.2^  In  actions  for  the  foreclosure  of  a  mortgage, 
against  the  estate  of  a  deceased  mortgagor,  his  heirs  are  not 
necessary  parties.^ 

§  163.  Foreclosure   of   mortgages   and   mechanics'    liens.        In 

actions  to  foreclose  mortgages,  all  parties  who  own  or  have  an 
estate  in  the  land  to  be  sold  under  the  decree,  and  those  who., 
either  originally  or  by  assignment,  are  liable  on  the  mortgage 
debt,  are  necessary  parties.  It  is  proper,  however,  to  join  as 
defendants  all  persons  materially  interested  in  the  subject- 
matter  of  the  controversy.^®     Thus  the  owner  of  the  equity  of 

20  Massie's  Heirs  v.  Donaldson,  8  Ohio,  377. 

21  Jilaples  V.  Geller,  1  Nev.  233. 

22  Bank  of  Stockton  v.  Rowland,  42  Oal.  129;  Mattlson  v.  Childs, 
Ti  Col.  78. 

23  2  Williams  on  Executors,  p.  1478;  Eustace  v.  .Tahns,  38  Cal.  3. 

24  Craton  v.  Wensiger,  2  Tex.  202;  Able  v.  Chandler,  12  id.  92; 
Eustace  v.  .Tahns,  38  Cal.  3. 

25  Bailey  v.  Muehe,  1  West  Coast  Hep.  12."»,  2(13;  3  id.  19.5.  An 
action  instituted  by  a  party  on  one  side  for  individual  rights,  asainst 
herself  as  administratrix  of  her  husband's  estate,  is  in-egular,  and 
should  not  be  upheld.    Norton  v.  Walsh,  94  Cal.  564. 

26Luning  v.  Brady,  10  Cal.  265;  Montgomery  v.  Tutt,  11  id.  307; 
Tyler  v.  Yroka  Water  Co..  14  id.  212;  De  Leon  v.  Iliguera,  15  id. 
483:  Goodenow  v.  Ewer,  16  id.  461;  76  Am.  Dec.  540;  McDermott 
X.  Burke,  16  Cal.  580;  Burton  v.  Lies,  21  id.  87;  Horn  v.  Jones,  28 
id.  194;  Anthony  v.  Nye,  30  id.  401;  Cai-penter  v.  Bronham,  40  id. 
221:  Brainard  v.  Cooper.  10  N.  Y.  3.56;  Peck  v.  Mallaras,  id.  509; 
Walsh  V.  Rutgers  Fire  Ins.  Co.,  la  Abb.  Pr.  33;  Case  v.  Price,  17 
How.  Pr.  348;  9  Abb.  Pr.  111. 


127  ACTIONS   ARISING    FROM    CONTRACTS,  ETC.  §  163 

redemption  is  a  necessary  party  to  a  foreclosure  suit.^'^  And 
the  same  is  true  of  the  grantee  of  the  mortgagor.^^  But  where 
the  payment  of  the  mortgage  debt  is  assumed  by  the  grantee, 
as  between  himself  and  tlie  mortgagor,  although  the  grantee  is 
a  necessary  party,  the  graiitor  is  not.^^  In  New  York  and  other 
states  the  wife  of  the  mortgagor,  or  of  the  subsequent  grantee, 
is  a  necessary  party,  in  order  to  cut  off  her  equity  of  redemp- 
tion.^*' An  assignee  in  bankruptcy  of  the  mortgagor  is  a  neces- 
sary party,  and  if  not  joined  may  sue  to  redeem.^^  But  an 
assignment  in  bankruptcy  pending  suit  does  not  make  the  as- 
signee a  necessary  party .^^ 

If  a  mortgage  is  assigned  as  a  security,  the  assignor  is  a  neces- 
sary party.^^  So  the  assignor  of  a  mortgage  who  guarantees 
its  payment.^^  Otherwise  if  there  is  no  express  covenant  to  pay, 
though  it  forms  part  of  the  purchase  money .^ 

In  a  foreclosure  of  mortgage  given  by  trustees  the  cestiiis  que 
trust  are  necessary  parties.^*^     When  an  action  is  brought  to 

27  Reed  V.  Marble.  10  Paige,  400;  Dexter  v.  Arnokl.  1  Sumn.  109; 
Gordon  v.  Lewis,  2  id.  14.3:  Griswold  v.  Prowler,  6  Abb.  Pr.  120; 
New  York  Life  Ins.  &  Trust  Oo.  v.  Bailey,  3  P]dw.  Ch.  417;  Cooke 
V.  O'Higrgins,  14  How.  Pr.  1.54;  see  Bank  of  Orleans  v.  Flagg,  3 
Barb.  Ch.  31G;  Case  v.  Price,  9  Abb.  Pr.  113;  Landon  v.  Townshend, 
112  N.  Y.  93;  8  Am.  St.  Rep.  712;  Watts  v.  Julian,  122  lud.  124; 
Carpenter  v.  Ingalls,  3  S.  Dak.  49. 

28  Skinner  v.  Buck,  29  Cal.  2.53;  Heyman  v.  Lowell,  23  id.  106; 
Morrow  v.  Morrow,  48  Tex.  3M. 

20  Drury  v.  Clark,  IB  How.  Pr.  424;  Van  Nest  v.  Latson,  19  Barb. 
604;  Stebbins  v.  Hall,  29  id.  r>24;  Mc Arthur  v.  Franklin,  15  Ohio 
St.  4S5. 

30  Denton  v.  Nanny,  S  Barb.  618;  Dexter  v.  Arnold,  1  Sunm.  109; 
Gordon  v.  Lewis.  2  id.  143;  Wheeler  v.  Morris,  2  Bobw.  524;  Vartie 
V.  Underwood,  18  Barb.  561;  Mills  v.  Van  Voorhies,  20  N.  Y.  412; 
Blydenburg  v.  Northrop,  13  How.  Pr.  289;  Brownsou  v.  Gifford,  8 
id.  .389;  Plnfkncy  v.  AVallace,  1  AW).  Pr.  82;  Lewis  v.  Smith,  11 
Barb.  1.52;  T'nion  Bank  v.  Bell,  14  Ohio  St.  200.  The  wife  is  a 
necessarj-  party  deffndaiil  in  an  aftion  to  foreclose  a  mortgage 
on  the  liomestcad,  exfc'uted  l)y  tiie  husband.  Mabuiy  v.  Ruiz.  58 
Cal.  11. 

31  Wlnslow  V.  Clark,  47  N.  Y.  2f;i. 

32  Cleveland  v.  Boerum,  24  N.  Y.  613;  Daly  v.  Burchell.  13  Abb. 
Pr.  (N.  S.)  204. 

33  Kittle  V.  Van  Dyrk.  1  Sandf.  Ch.  76. 
84  Bristol  V.   Morgan,  3  Edw.  Ch.  142. 

88  LrKkwoo<l  V.  Bi-nedirt,  3  Edw.  Ch.  472. 

36  Piatt  V.  ruiver,  2  McLean,  S.  Ct.  267;  Woolner  v.  Wilson,  5  111. 
App.  439. 


§  163  GENERAL    I'Hl  N('I  I'LKS.  128 

foreclose  a  mortgage  securing  the  payment  of  a  promissory  note, 
the  maker  and  indorser  of  the  note  may  be  joined  as  defend- 
ants.^^ A  writ  of  entry  to  foreclose  a  mortgage  may  be  main- 
tained against  a  tenant  in  possession.''^  Where  infants  having 
an  equitable  vested  remainder  in  fee,  liable  to  be  defeated  by 
their  dying  in  the  lifetime  of  the  equitable  tenant  for  life,  were 
not  made  parties,  they  are  not  bound  by  the  decree.^"  And 
where  there  are  several  future  and  contingent  interests,  the 
person  who  has  the  first  vested  estate  of  inheritance  and  all 
other  persons  having  prior  rights  or  interests  in  the  premises 
must  be  made  parties;  though  every  person  having  a  future  or 
contingent  interest  is  not  a  necessary  party.*"  In  such  suit, 
where  the  defendant  dies  after  the  commencement  of  suit,  the 
administrator  becomes  a  necessary  party  in  a  petition  for  de- 
cree of  sale  of  mortgaged  premises,  if  it  is  sought  to  have  a 
judgment  over  against  the  estate  for  any  deficiency.*^ 

In  general,  all  incumbrancers  prior  and  subsequent  are  proper 
parties  defendant,  and  should  be  joined  if  it  is  desired  to  secure 
a  judgment  binding  them.*^  But  an  incumbrancer  who  be- 
comes such  pending  suit  is  not  entitled  to  redeem,  and,  there- 
fore, need  not  be  made  a  party. *^ 

But  in  California,  no  person  holding  a  conveyance  from  or 
under  the  mortgagor  of  the  property  mortgaged,  or  having  a 
lien  thereon,  which  conveyance  or  lien  does  not  appear  of  rec- 
ord in  the  proper  office  at  the  time  of  the  commencement  of 
the  action,  need  be  made  a  party  to  such  action;  and  the  judg- 
ment therein  rendered  and  the  proceedings  therein  had  are  as 
conclusive  against  the  party  holding  such  unrecorded  convey- 
ance or  lien  as  if  he  had  been  made  a  party  to  the  action.** 
Suits  for  the  foreclosure  of  a  mechanic's  lien  are  in  many  re- 

37  Eastman  v.  Turman,  24  Cal.  382, 

38  Tales  V.  Gibbs,  5  Mason  C.  C.  462. 

39  Williamson  v.  Field,  2  Sandf.  Ch.  533. 

40No<line  v.  Greenfield,  7  rai?:e  Ch.  544;  34  Am.  Dec.  3fi3. 

41  Bellof  V.  Rogers,  9  Cal.  123;  see  Fallon  v.  Butler,  21  id.  24;  81 
Am.  Dec.  140. 

42Filney  v.  Bank  of  United  States,  11  Wheat.  S.  Ct.  304;  Matcalm 
V.  Smith,  0  MfI.ean  S.  Ct.  416;  Ensworth  v.  Lambert.  4  Johns.  Ch. 
605;  Haines  v.  Beach,  3  id.  461. 

43  Coolc  V.  Mancius,  5  Johns.  Ch.  89;  Loomis  v.  Stuyvesant,  10 
Paipe  Cli.  490;  People's  Bank  v.  Hamilton  Mfg.  Co.,  10  id.  481;  see 
Bishop  of  Winchester  v.  Paine,  11  Ves.  194. 

44  Code  Civ.  Pro.,  §  726. 


129  ACTIONS   AKISIXG   FROM    CONTRACTS,    ETC.  §  164 

spects  analogous  to  those  in  ordinary  foreclosure.  All  parties 
necessary  to  enable  the  court  to  do  complete  justice  may  be 
joined.^^ 

Ordinarily,  in  an  action  to  foreclose  a  mortgage,  it  is  not 
necessary  to  make  prior  mortgagees  or  incumbrancers  parties;'*'' 
but  all  subsequent  lienors  by  judgment  must  be  made  parties.'''' 
It  is  held  in  some  of  the  states  that  the  heirs  of  a  deceased 
mortgagor  are  necessary  parties  in  a  suit  to  foreclose  the  mort- 
gage.^* But  in  California  the  heirs  are  not  necessary  parties  in 
an  action  against  an  administrator  to  foreclose  a  mortgage.'*^ 
The  surviving  partner  is  a  proper  party  to  an  action  to  foreclose 
a  mortgage  made  by  a  deceased  partner  of  his  individual  prop- 
erty to  secure  the  firm  indebtedness,  but  is  not  a  necessary  or 
indispensable  party  thereto.^° 

§  164.  Action  for  fraud.  In  an  action  to  obtain  relief  from 
a  judgment  fraudulently  procured,  the  attorney-at-law  charged 
with  being  a  party  to  the  fraud  should  be  joined  with  the 
client.'^^  So  partners  may  be  jointly  sued  for  fraudulently 
recommending  an  insolvent  person  as  worthy  of  credit.^^  Or  for 
deceit  in  a  sale,  if  both  knowingly  make  false  representations, 
though  only  one  was  interested  in  the  expected  fruits  of  the 
fraud.'^^  So  in  an  action  to  set  aside  a  conveyance  as  made 
without  consideration  and  in  fraud  of  creditors,  the  fraudulent 
grantor  is  a  necessary  party  defendant.'^^ 

4S  Sullivan  v.  Decker.  1  E.  D.  Smith,  699;  Lowber  v.  Childs,  2  id. 
577;  Foster  v.  Skidiuore.  1  id.  719;  Kaylor  v.  O'Connor,  id.  072.  In 
a  suit  to  foreclose  a  lien  by  a  materialman  or  subcontractor,  the 
contractor  or  original  promisor,  against  whom  a  debt  must  be 
established  as  the  foundation  of  a  decree,  is  an  indispensable  party. 
Davis  v.  Monat  Lumber  Co.,  2  Col.  App.  381;  Estey  v.  Lumber  Co., 
4  id.  105;  Sayre-Xewton  Lumber  Co.  v.  Park,  4  id.  482. 

4fi  White  v.  Ilolman,  32  Ark.  7.'3;  Evans  v.  McLucas,  12  S.  Car.  50; 
IlaKue  V.  .Tackson,  71  Tex.  701;  Crawford  v.  Munford,  29  111.  App. 
44.5. 

47  Do  Lashmutt  v.  Sellwood.  10  Ore^.  319. 

4«  riUow  v.  Sentella.  39  Ark.  01;  Hill  v.  Townley,  45  Minn.  167; 
Trai)lf>r  v.  Waldo,  10  S.  Car.  270;  Konshaw  v.  Taylor,  7  Ore*?.  315. 

•«'  Hayly  v.  Muehe,  (io  Cal.  345. 

w  London,  etc..  Hank  v.  Smitli,  Ull  Cni.   11.5. 

r-i  C'rnne  v.  Ilirsciifclder,  17  Cal.  407. 

f'2  T'attcn  V.  fJurney,  17  M:iss.  182;  9  Am.  Dec.  141. 

•'•T  Stiles  V.  White,  11    .Met.  .'{.^.0;  45  Am.  Dec.  214. 

•M  rjay lords  v.  Kclsliaw.  1  Wall.  (T*.  S.)  81.  A  fraudulent  grantor 
JH  a  proper  party  defendant  in  an  action  to  snl).ject  to  a  lien  of  a 
Judgment  the  property  allofred  to  have  been  fraudulently  conveyed, 

Vol,.  T— ir 


5$  lt:5  ge>;j;hal  i'uinciples.  130 

§  165.  In  ejectment.  The  goueral  rule  is  that  ejectment 
cuu  bo  uuiintaiueil  only  against  the  real  party  in  possession 
although  ho  is  not  personally  on  the  premises,  but  may  be  in 
possession  through  servants  and  employees.^'*  A  mere  party,  in 
oharge  for  others,  is  not  an  occupant.^*^  A  railroad  company 
who  have  simply  laid  rails  on  a  public  highway  are  not  occu- 
pants.'^"  ]U\i  it'  the  landlord  bo  joined  with  the  tenant  as  de- 
fondant  in  an  action  of  ejectment,  judgment,  if  for  the  plaintilV, 
must  be  against  both.''** 

In  ejectment  against  mining  claims,  it  is  not  necessary  to  in- 
clude as  defendants  those  holding  other  undivided  interests. ■'^'-^ 
But  a  landlord  may  come  in  and  defend  in  an  action  in  eject- 
ment, where  summons  is  served  on  a  tenant,  by  a  proper  show^- 
ing,  even  after  a  default  is  taken.  The  statute  should  in  such 
cases  be  construed  so  as  to  dispose  of  actions  of  this  character 
as  nearly  on  their  merits  as  possible,  and  without  unreasonable 
delay,  regarding  mere  technicalities  as  obstacles  to  be  avoided.*"^ 
A  landlord  may  defend  in  the  name  of  the  tenant,  but  not  in 
his  own  name.*'^     Persons  renting  different  apartments  in  the 

but  he  is  not  a  necessaiy  party.  Blanc  v.  Paymaster  Min.  Co.,  95 
Cal.  524.  So  in  an  action  by  a  pureliaser  at  an  execution  sale,  to 
set  aside  a  conveyance  allejiod  to  have  been  made  by  the  judgment 
debtor  in  fraud  of  creditors  and  purchasers,  and  to  recover  posses- 
sion of  the  property,  the  assignee  in  insolvency  of  the  judgment 
debtor  is  a  proper  party  defendant.     Ptister  v.  Dascey,  65  Cal.  408. 

55  Polack  V.  Mansfield,  44  Cal.  36;  13  Am.  Rep.  151;  see,  also, 
Valentine  v.  Mahoney,  37  Cal.  389,  where  the  question  is  discussed 
as  to  the  applicability  of  section  13  of  the  Practice  Act  (Code  Civ. 
Pro.,  §  379,  fii-st  clause)  to  the  action  of  ejectment. 

56  Havikins  v.  Keichert,  28  Cal.  .534;  People  v.  Ambrecht,  11  Abb. 
Pr.  97.  A  mere  emi)loyee  of  a  defendant  in  ejectment,  vv^ho  is  per- 
mitted to  reside  upon  the  premises  when  suit  is  commenced,  and 
who  claims  no  rights  in  the  land  as  tenant  or  otherwise,  is  not  a 
nece.ssai-y  party  defendant.  Shaw  v.  Hill,  83  Mich.  322;  21  Am. 
St.  Rep.  607.  And  where  the  defendant  in  ejectment  has  possession 
and  a  life  estate  in  the  property,  his  heirs  can  not  be  made  parties 
defendant  with  him.  Allen  v.  Rauson,  44  Mo.  203;  KX)  Am.  Dec. 
2S2. 

57  Redfield  v.  Utica  &  Syracuse  R.  R.  Co.,  25  Barb.  54. 

58  Code  Civ.  Pro.,  §  379. 

50  Waring  v.  Crow,  11  Cal.  366. 

(■>(>  Roland  v.  Kreycnhagen,  18  Cal.  4.55;  see.  also,  Ried  v.  Calder- 
wowl,  22  id.  4^5;  Barrett  v.  Graham,  19  id.  632;  affirmed  in  Bailey 
V.  Taafe,  29  id.  424. 

fii  Dimick  v.  Deringer,  ?,2  Cal.  488;  see,  also,  Valentine  v.  Mahoney, 
37  id.  393;  Hussman  v.  Wilke.  50  id.  2."0;  Garner  v.  Marshall,  9  id. 
270. 


131  ACTIONS   AKliJlNG   FEOM    CO^S'TRACTS,    ETC.  §  166 

same  house  may  be  joined  as  defendants.^^  And  the  same  is 
tme  of  parties  claiming  title,  accompanied  by  acts  of  owner- 
ship, to  unoccupied  premises.^^  And  any  number  may  be  made 
defendants,  subject  to  tireir  right  to  answer  separately.^ 

§  166.  Married  woman.  in  California,  where  a  married 
woman  is  a  party,  her  husband  must  be  joined  with  her,  except: 
1.  When  the  action  concerns  her  separate  property,  or  her  right 
or  claim  to  the  homestead  property,  she  may  sue  alone;  2.  When 
the  action  is  between  herself  and  her  husband,  she  may  sue  or 
be  sued  alone;  3.  When  she  is  living  separate  and  apart  from 
her  husband  by  reason  of  his  desertion  of  her,  or  by  agreement 
in  writing  entered  into  between  them  she  may  sue  or  be  sued 
alone/'^  If  a  husband  and  wife  be  sued  together,  the  wife  jnay 
defend  for  her  own  right,  and  if  the  husband  neglect  to  defend, 
she  may  defend  for  his  right  also.®® 

For  any  fraud  or  deceit  practiced  by  the  defendant,  whether 
the  injury  were  wrought  through  the  form  of  a  contract  or  not, 

62  Pearce  v.  Golden,  8  Barb.  522. 

C3  Garner  v.  Marshall,  9  Cal.  268;  Taylor  v.  Crane,  15  How.  Pr. 
358. 

04  Winans  v.  Christy,  4  Cal.  70;  60  Am.  Dec.  597;  Rftchie  v.  Dor- 
land.  6  Cal.  33;  Ellis  v.  Jeans,  7  Id.  417;  Curtis  v.  Sutter,  15  id.  264; 
Marion  v.  Folger,  id.  276;  Leese  v.  Clark,  28  id.  35;  Fossate  v. 
Herldmer,  etc.,  Hyd.  Co..  12  Barb.  352;  Andrews  v.  Carlile,  20  Col. 
370;  Walker  v.  Read,  59  Tex.  187. 

er.  Code  Civ.  Pro.,  §  370. 

66  Id.,  §  371;  Laws  of  Iowa,  §  2774;  Idaho,  §  8;  Nevada,  §  29;  Ohio, 
5  29;  N.  Y.  Code,  1877,  §  450.  As  to  what  is  separate  property,  see 
Cal.  Civil  Code,  §§  162,  163.  In  actions  brought  under  sub- 
division second  of  this  section,  the  test  is  simply  to  ascertain  if 
the  Kuit  is  between  her  and  her  husband;  and  this  being  found  in 
the  affirnialive,  the  necessity  of  introducing  otlier  parties  can  not 
affect  her  right.  Kasliaw  v.  Kashaw,  3  Cal.  321.  In  actions  brought 
under  subdivision  3,  a  teinporarj*  ai)sence  does  not  eonie  within  the 
meaning  of  the  act.  Tliere  must  have  been  an  abandonment  on 
the  part  of  the  husband  or  wife,  or  a  separation  which  was  in- 
tended to  be  final.  Tobin  v.  Calvin,  49  Cal.  36,  37.  Tlie  wife  can 
appear  In  and  defend  an  action  separately  from  her  husband;  she, 
therefore,  possesses,  as  defendant,  all  tlie  rights  of  a  feme  sole,  and 
is  aide  to  make  as  liindiiig  admissions  in  writing  as  other  i)arties. 
Alder.son  v.  Bell.  0  Cal.  .",21.  Tlie  statute  confers  only  a  privilege 
which  in  many  instances  it  may  be  imjiortant  for  the  wife  to 
assert  for  flie  prntpctlnn  of  her  interests,  and  in  the  exercise  of 
wliich  the  fullest  liberty  should  be  accorded  to  her.  Van  Maren 
V.  Johnson,  15  Cal.  311. 


g  IGG  GENERAL   ria^'CU'LES.  132 

affecting  the  coiuiuon  property,  tlio  rt'iuedy  is  by  the  husband 
alone/''  The  huishand  of  a  married  woman  is  properly  joined 
with  her  as  a  party  defcnchnit  in  an  action  ujjon  a  partnership 
obligation  eonlraeted  by  tlie  wife  and  third  persons  as  partners 
previous  to  the  marriage  and  while  she  was  a  fane  sole.^  The 
wife  is  an  improper  party  to  a  suit  brought  to  recover  money 
loaned  to  her  to  complete  the  amount  of  i)urehase  money  for  a 
lot  of  ground,  the  deed  of  which  was  executed  to  her,  but 
which  became  common  property,  and  which  purchase  was  after- 
wards ratilied  by  the  husband.  Tliere  could  be  no  personal 
judgment  against  the  wife.^^  In  California,  the  wife  may  ap- 
pear in  and  defend  an  action  separately  from  her  husbandJ^ 
Where  the  defense  of  the  wife  is  a  special  one,  she  can  defend 
for  her  own  right  as  well  when  sued  jointly  as  if  the  trial  was 
separateJ^  To  enable  her  to  defend  in  her  own  right,  she  must 
possess  as  defendant  the  rights  of  a  feme  soleP  In  an  action 
pertaining  to  her  property  as  sole  trader  under  the  act  of  1852, 
the  husband  need  not  be  joinedJ^ 

The  husband  is  properly  joined  with  the  wife  in  an  action 
upon  an  obligation  contracted  by  the  wife  previous  to  mar- 
riageJ^  In  a  suit  to  foreclose  a  mortgage,  and  set  aside  a  fraud- 
ulent conveyance  of  property  by  the  husband  to  the  wife,  the 
wife  was  properly  joined  with  the  husband  as  a  defendant J^ 
And  in  a  foreclosure  of  a  husband's  mortgage  for  the  purchase 
money  of  the  wife's  separate  estate,  both  must  be  joined.'^^     So, 

67  Ban-ett  v.  Tewksbury,  18  Oal.  336. 

68  Keller  v.  Hicks,  22  Cal.  4,57;  83  Am.  Dec.  78. 
69Altliof  V.  Conheim,  38  Cal.  230;  99  Am.  Dec.  3G3. 
70Alderson  v.  Bell,  9  Cal.  315;  approved  In  Leonard  v.  Townsend, 

26  id.  445. 

71  Deuprez  v.  Deuprez,  5  Cal.  387. 

72Alderson  v.  Bell,  9  Cal.  315;  Leonard  v.  Townsend,  26  Id.  445. 
In  Sontli  Dakota,  wlieu  a  married  woman  is  a  party  the  same  rules 
apply  as  if  she  were  single.    Code  Civ.  Tro.,  §  77. 

73  (iuttman  v.  Scannell,  7  Cal.  4.55.  For  other  authorities,  see 
Dundenlale  v.  Grymes,  16  How.  Pr.  195;  Kouillier  v.  Wernicki,  S 
E.  D.  Smith,  310;  Avogadro  v.  Bull,  4  id.  385;  Freeman  v.  Orser, 

5  Duer,  477.     And  she  must  be  sued  alone.     McKune  v.  McGarvey, 

6  Cal.  497;  approved  in  Guttman  v.  Scannell,  7  id.  455;  and  Camden 
V.  Mullen,  29  id.  .564. 

74  Keller  v.  Hicks,  22  Cal.  457;  83  Am.  Dec.  78. 

75  Kohner  v.  Ashenanor,  17  Cal.  579. 

7c  Mills  T.  Tan  Voorhies,  20  N.  Y.  412;  10  Abb.  Pr.  152;  Rusher  v. 
Morris,  9  How.  Pr.  266. 


133  ACTIONS   ARISIXG    FKO.M    CONTRACTS,    ETC.  §  167 

also,  where  the  wife  executes  a  mortgage  with  her  husbandJ^ 
So,  in  partition  suits,  the  wife  must  be  joined  with  her  husband 
as  defendant. '^^  In  forcible  entry  and  detainer,  also,  the  hus- 
band is  properly  joined  "in  the  action.'^^  So,  also,  where  the 
homestead  is  involved,  the  wife  must  be  joined  as  defendant  in 
certain  cases.^  For  the  torts  of  the  wife,  committed  out  of 
the  presence  of  the  husband,  the  latter  must  be  joined.^^ 

§  167.  Actions  by  or  against  infants.  When  an  infant  is 
a  party,  he  must  appear  either  by  liis  general  guardian,  or  by  a 
guardian  appointed  by  the  court  in  which  the  action  is  proae- 
cuted,  or  by  a  judge  thereof.  A  guardian  may  be  appointed  in 
any  case,  when  it  is  deemed  by  the  court  in  which  the  action  is 
prosecuted,  or  by  a  judge  thereof,  expedient  to  represent  the 
infant  in  the  action,  notwithstanding  he  may  have  a  general 
guardian,  and  may  have  appeared  by  him.^^  When  the  infant 
is  defendant,  a  guardian  will  be  appointed  u})on  the  applica- 
tion of  the  infant,  if  he  be  of  the  age  of  fourteen  years,  and 
apply  within  ten  days  after  the  service  of  the  summons;  if  he 
be  under  the  age  of  fourteen,  or  neglect  so  to  apply,  tlien  upon 
the  application  of  any  other  party  to  the  action,  or  of  a  relative 
or  friend  of  the  infant.^^     Where  infant  defendants  have  no 

77  Anthony  v.  Nye,  30  Cal.  401;  Condc  v.  SlH'i)ar(l,  4  Mow.  Tr.  75; 
Concle  V.  Nelson,  2  Code  It.  .")S:  sei^  Fitzfxoiald  v.  Fernandoz,  71  Cal. 
504. 

7sr)e  rprey  v.  Do  I'proy,  27  Cal.  320;  87  Am.  Dec.  Si;  Ripple  v. 
(;ill)orn,  S  How.  Pr.  4(10;  Tauuer  v.  Nilos,  1  Barb.  ijOH. 

79  See  Howard  v.  Valentine,  20  Cal.  2.S2. 

'^"  Sargent  v.  Wilson,  5  Cal.  .504;  approved  in  Moss  v.  Warner,  10 
id.  2tJ7;  Hevnllv  v.  Kraenior,  8  id.  (>G;  08  Am.  Dec.  304;  Marks  v. 
.Marsh,  9  Cal.  [)(',;  Horn  v.  Volcano  Water  Co.,  13  id.  70;  73  Am. 
Dec.  5G9;  Anthony  v.  Nye.  30  id.  401. 

f^i  Anderson  v.  Hill,  .5.'^  liarb.  2.38;  Peak  v.  Lemon,  1  Lans.  29.5; 
Tait  v.  Culliertson,  57  Hailt.  9;  KowiiiR  v.  Manley,  id.  479;  49  N.  Y. 
192;  10  Am.  Rep.  340;  Hra/.il  v.  Moran,  8  Minn.  230;  &{  Am.  Dec. 
772;  Hall  v.  Hennclt,  21  Ind.  427;  S.",  .Am.  Dec.  ."{50;  Turner  v.  Hitch- 
cock. 2(»  Iowa.  310;  Mnsselniaii  v.  Cjilli^'licr.  32  id.  .3S;V.  McIOll'rcsh 
V.  Kirkendall,  30  id.  224;  Lusc  v.  0;iks,  id.  .50ii;  Curd  v.  Dodds.  0 
Bush,  (hSl;  Coolidyc  v.  Pan-is.  8  Dido  St.  .594. 

»2CaI.  Code  Civ.  Pro.,  §  .372.  The  apjiearance  of  a  general  guar- 
dian Is  sufflcienf  to  frivc  the  court  jurisdiction  of  the  persons  of 
Infant  defendants,  nnd  (h«^  fact  thnt  nn  «uiirdi;in  ad  litem  was  ap- 
pointed for  them  is  immaterial.  Ridiardson  v.  Loupe,  80  Cal.  499; 
Western  Lumber  Co.  v.  Pldllips.  94  Cal.  54. 

M  Cal.  Code  Civ.  Pro.,  §  373;  N.  Y.  CJode  Civ.  Pro.,  §  470;  UlU'a 
Laws  of  Dretron,  8  33. 


§§  1G8-170  GENERAL    T'UINCIPLES,  134 

Beparato  or  special  ilol'ense,  no  separate  or  special  answer  need 
bo  iilcil  iu  ihcir  bchall',  but  jt>iiulcr  in  a  common  answer  with 
the  other  defendants  is  suUicient.**"* 

§  168.  For  infringement  of  patent.  In  selling  an  article 
which  infringes  upon  a  patent,  the  agent  may  be  joined  with 
the  manufacturer  as  a  party  defendant  in  an  action  against 
them  as  trespassers.**' 

§  169.  Injunction.  In  an  action  to  enjoin  the  issuance  of 
bonds  by  fund  commissioners,  it  is  necessary  that  some  of  the 
parties  to  whom  bonds  are  to  be  issued  should  be  parties  de- 
fendant.**^ In  a  bill  of  peace  to  restrain  vexatious  litigation, 
although  some  of  the  parties  be  mere  accommodation  grantees, 
they  have  a  right  to  be  heard  at  law  in  their  own  defense.**'^ 
Where  one  of  the  defendants  in  a  joint  judgment  sues  to  have 
the  judgment  perpetually  enjoined,  his  codefendants  should  be 
made  parties  to  the  action.^ 

§  170.  Injuries  caused  by  negligence.  In  an  action  to  re- 
cover for  damage  done  to  the  property  of  the  plaintiff  by  reason 
of  the  breaking  away  of  a  dam  built  by  contractors,  when  the 
employers  exercise  no  supervision,  give  no  directions,  furnish 
no  materials,  and  have  not  accepted  the  work,  the  contractors 
alone  are  liable.^^  After  the  acceptance  of  the  work,  the  owner 
is  also  liable  for  damage  resulting  from  faulty  construction.^^ 
Common  carriers,  for  loss  of  goods,  may  be  sued  jointly  or 
severally.^^ 

f>4  Western  Lumber  Co.  v.  Phillips.  94  Cal.  54. 

85  Buck  V.  Cobb,  9  Law  Rep.  545;  see  Biyee  v.  Dorr,  3  McLean, 
582. 

86  Hutchinson  v.  BuiT,  12  Cal.  103;  affirmed  in  Patterson  v.  Yuba 
Co.,  id.  10.5. 

svKnowles  v.  Inches,  12  Cal.  212. 

88  Gates  V.  Lane,  44  Cal.  .392. 

89  Boswell  V.  Laird,  S  Cal.  4()9;  G8  Am.  Dec.  345;  Du  Pratt  v.  Lick, 
.38  Cal.  091:  O'llale  v.  Sacramento.  48  id.  212;  Railroad  Co.  v. 
Farver,  111  Ind.  195;  60  Am.  Rep.  090;  Hughes  v.  Railroad  Co.,  .39 
Ohio  St.  461;  and  see  Baird  v.  Shipman,  132  111.  10;  22  Am.  St.  Rep. 
.504. 

flo  Boswell  V.  Laird.  S  Cal.  409;  08  Am.  Dec.  345;  Fanjoy  v.  Seales, 
29  Cal.  249. 
91  Mcintosh  v.  Ensign,  28  N.  Y.  109;  Merrick  v.  Gordon,  20  id.  93. 


135  ACTIONS   ARISING    FROM    CONTRACTS,    ETC.    §§  171,173 

§  171.  Action  for  legacy  charged  on  land.  Purchasers  of  land 
in  unequal  portions,  charged  with  the  payment  of  a  legacy, 
must  be  joined  in  an  action  for  the  legacy."^ 

§  172.  Actions  against  partners.     In  California  partners  may 
be  sued  by  their  common  name,  whether  it  comprises  the  names 
of  the  persons  associated  or  not.^^     In  such  case  the  statute 
provides  that  the  judgment  may  run  against  the   joint  and 
individual  property  of  the  partner  served,  and  against  the  joint 
property  of  the  partner  not  served.     The  constitutionality  of 
the  statute,  so  far  as  it  attempts  to  impose  a  liability  upon  the 
person  or  property  of  the  partner  not  served,  has  been  more 
than  doubted.^*     But  a  party  can  only  be  bound  on  a  note 
executed  in  a  firm  name,  who  is  actually  a  member  of  the  firm 
executing  the  same,  or  has  held  himself  out  as  a  meml)er  so  as 
to  give  the  firm  credit  on  his  responsibility.     So,  it  would  seem 
dormant  partners  not  disclosed  need  not  be  joined  as  defend- 
ants.'*''    All  partners  are  liable  for  fraudulent  representations  of 
one  made  in  the  course  of  partnership  business.®^     So  a  part- 
ner is  liable  to  third  persons  for  injuries  occasioned  by  negli- 
gence, if  committed  in  the  course  of  the  partnership  business.**" 
In  suit  to  take  an  account  and  dissolve  a  mining  partnership, 
all   those   owning  interests  are   necessary   parties   defendant.^'' 
A  partner  may  be  sued  at  law  by  his  copartner  or  one  who  has 
been  such,  where  the  balance  has  been  ascertained  by  the  act  of 
all  the  partners,  and  agreed  to  as  constituting  such  balance.^^ 

ft2Swasey  v.  Little,  7  Tick.  290. 

!»3Cal.  Code  Civ.  Tro.,  §  3.38;  Welcli  v.  Klrkpatrick.  30  Cal.  202; 
SO  Am.  Dec.  8.'>. 

04  Tay  V.  Ilawle.v,  .39  Cnl.  0.3. 

o-i  North  V.  Bloss.  30  N.  Y.  374;  Wood  v.  O'Kelley,  8  Ctish.  406; 
Lord  v.  Baldwin,  0  Tick.  .3.")2;  see,  also.  Now  York  Dry  Dock  Co. 
V.  Tread  well,  10  AVcnd.  .">2."»;  Clarkson  v.  Carter,  3  Cow.  84;  Clark  v. 
Miller,  47  BarlK  028;  Mitflicll  v.  Doll.  2  liar.  &  G.  1.50;  Ilurlbut  v. 
r*o8t,  1  BoHW.  28;  soc  Pitkin  v.  Benfer,  W  Kans.  108;  34  Am.  St. 
Bop.  110;  Ilahlo  v.  Miiyer.  102  Mo.  03;  22  Am.  St.  Rep.  l')3. 

iM!  fJriswold   v.   Haven,  2.".  N.   Y.  r>Ury,  82  Am.  Dec.  380. 

&7  Cotter  V.  Bfttner.  1  Bosw.  400;  ,Wliittjiker  v.  Collins,  .34  Minn. 
209;  'u  Am.  Kep.  ."»;  Hess  v.  Lowry,  122  hid.  22.">;  17  Am.  St.  Rep. 
3.-.5. 

««Settfnilire  v.  IMitiiam.  .".o  r,-il.  lOo. 

s»o  Ross  v.  Cornell.  4.".  r.il.  I.",:::  lloff  v.  Rotrers,  07  Miss.  208;  19 
Am.  St.  Rf'p.  .301:  Newhy  v.  Flarrell.  00  .\.  C.  140;  0  Am.  St.  Rpp. 
503,    As  to  partnerships,  general  and  special,  the  powers  and  au- 


§§173,174:  GENKKAI,     I'KINCII'LES.  136 

§  173.  Actions  ag-ainst  principal  and  agent.  A  principal, 
though  hiiutioir  innocent,  is  liable  i'or  fraud  or  misconduct  of 
the  agent  acting  within  the.  scope  of  his  authority.^""  But  not 
in  matters  beyond  tliat  scope.^"^  And  where  the  principal  is 
known,  he  alone  is  liable. ^''^  But  an  agent  may  render  liim- 
self  personally  liable  by  not  disclosing  the  name  of  his  princi- 
pal.^^^  If  on  the  face  of  an  instrument  not  under  seal,  executed 
by  an  agent  with  competent  authority,  by  signing  his  own  name 
simply,  it  appears  that  the  agent  executed  it  in  behalf  of  the 
principal,  the  principal  and  not  the  agent  is  bound. ^"*  Where 
a  party  makes  a  purchase  from  an  innocent  agent,  who  after- 
wards parts  with  the  money  of  his  principal,  and  the  purchase 
avails  tlie  purchaser  nothing,  no  legal  right  of  complaint  will 
lie  against  the  agent.^^'^  Tlie  principal  and  agent  are  jointly 
liable  for  an  injury  caused  by  negligence  of  the  agent.^^^ 

§  174.  Actions  for  trespasB.  Generally  a  trespass  commit- 
ted by  several  persons  acting  together  creates  a  several  liability; 
but  if  the  trespass  is  joint,  all  the  trespassers  may  be  joined.'^ 
A  justice  of  the  peace  who  issues  an  execution  commanding 

thorlty  of  partners,  their  mutual  oblip:atlons  and  liability,  etc.,  see 
Civil  Code  Cal.,  §§  2424-2r,20. 

100  Dwinelle  v.  Heuri(iu('Z,  1  Cal.  392;  Adams  v.  Cole,  1  Daly,  147; 
Hunter  v.  Hudson  River  Iron  &  Macliine  Co.,  20  Barb.  493;  Thomas 
v.  Winchester,  C  N.  Y.  397;  Smith  v.  Reynolds,  8  Hun,  128;  Du 
Sonchet  v.  Dutcher,  113  Ind.  249;  Reynolds  v.  Witte.  13  S.  C.  5; 
30  Am.  Rep.  678. 

101  New  Yorli  Life  Ins.  &  Trust  Co.  v.  Beebe,  7  N.  Y.  3&4;  see,  also, 
Mechanics'  Bank  v.  New  Y'ork  &  New  Haven  R.  R.  Co.,  13  N.  Y. 
r>99;  4  Duer,  570;  Marsh  v.  Railroad  Co.,  56  Ga.  274. 

102  Conro  v.  Fort  Heniy  Iron  Co..  12  Barb.  27. 

103  Nason  v.  Cockroft,  3  Duer,  366;  Cabre  v.  Sturgess,  1  Hilt.  160; 
Blakeman  v.  Mackay,  id.  26t>. 

104  Haskell  v.  Cornish,  13  Cal.  45;  affirmed  in  Shaver  v.  Ocean 
Mining'  Co.,  21  id.  45;  Hall  v.  Crandall,  29  id.  571;  Love  v.  S.  N.  L. 
W.  &  M.  Co.,  32  id.  654. 

105  Engels  V.  Ileatly,  5  Cal.  136. 

106  rhelps  V.  Wait,  30  N.  Y.  78;  and  see  Malono  v.  Morton,  84  Mo. 
436;  Berghoff  v.  McDonald,  87  Ind.  549;  Martin  v.  Benoist,  20'  Mo. 
App.  262;  Cal.  Civil  Code,  §  2338;  and  generally  in  relation  to 
agency,  see  tit.  9,  Civil  Code  Cal. 

107  Sumner  v.  Tileston,  4  Pick.  308;  Creed  v.  Hartman,  29  N.  Y. 
591;  86  Am.  Dec.  341;  Kasson  v.  People,  44  Barb.  347;  Woodl)ridge  v. 
Camor,  49  Me.  3.o3;  77  Am.  Dec.  263.  Tliat  they  may  be  sued  jointly, 
see  King  v.  Orser,  4  Duer,  431;  Waterbur:^^  v.  Westervelt,  9  N.  Y.  598; 
Herring  v.  Hoppock,  3  Duer,  20;  Marsh  v.  Backus,  16  Barb.  488. 


137  ACTIOX.S    ARISIXG    FROM    CONTRACTS,    ETC.  §  175 

the  arrest  of  the  judgment  debtor,  and  the  attorney  who  pro- 
cures the  execution  to  be  issued,  in  a  case  in  which  both  know- 
that  the  law  prohibits  an  arrest  in  such  action,  are  jointly  liable 
to  the  debtor  in  trespass.^i**  Trespass  lies  against  a  municipal 
corporation.  ^^^ 

§  175.  Actions  agaixist  trustees.  In  an  action  to  carry  out 
a  trust  deed,  or  against  a  trustee,  for  breach  of  trust,  all  the 
cestuis  que  trust  are  necessary  parties.^^*^  But  not  in  an  action 
to  set  aside  a  trust  deed.^^^  A  party  not  a  trustee  may  be  joined 
or  not,  at  the  option  of  the  plaintiff.^^^  In  an  action  by  one  of 
several  cestuis  que  trust  to  declare  and  enforce  an  implied  trust, 
all  who  claim  to  be  entitled  to  a  portion  of  the  trust  estate  are 
proper  parties  defendant. ^^^  But  when  such  share  is  ascer- 
tained, each  claimant  may  sue  alone;^^'*  or  for  breach  of  trust. -^^^ 
Persons  holding  funds,  and  who  have  always  dealt  with  them 
as  if  they  were  trust  funds,  are  liable  for  losses  occasioned  by 
improper  investments,  though  they  did  not  in  fact  know  who 
the  cestuis  que  trust  were.^^*^  So,  where  A.  was  indebted  to 
plaintiff,  and  conveyed  his  property  to  B.,  to  be  disposed  of 
for  his  benefit,  and  had  drawn  an  order  in  favor  of  plaintiff  on 
B.,  who  had  accepted  it,  and  B.  subsequently  conveyed  a  por- 
tion of  the  property  to  A.,  without  consideration,  it  was  held 
that  A.  was  a  proper  and  necessary  party  to  the  action.^^'^ 

108  Sullivan  v.  .Tones,  2  Gray,  .")70. 

109  Allen  V.  Decatur,  123  111.  3.32:  Frederick  v.  Lansdale  Borough, 
1.^.6  Penn.  St.  613. 

'"^Colffrove  v.  Tallmadfre,  G  Bosw.  289;  Bishop  v.  Houghton,  1 
E.  D.  Smith.  r,iiC,:  Bank  of  British  N.  A.  v.  Suydam,  (J  How.  Pr. 
379:  Johnson  v.  Snyder,  8  id.  498. 

Ill  P.nsscll  V.  I.asher,  4  Barb.  2:52:  Wheoler  v.  Whet-don,  9  IIow. 
Pr.  2;»3:  Sc-ndder  v.  Voorhis,  .">  Sandf.  271;  see,  also,  Wallace  v. 
Eaton,  .".  How.  Pr.  {«>. 

ii2Bnteiiian  v.  Margerison,  (I  Hare,  499. 

in.Ifnisins  v.  Fi-ink.  .3o  Cal.  .'iWi;  89  Am.  Dec.  134;  West  v.  Ran- 
dall. 2  .Mjison,  isi;  Armstrong  v.  Lear,  8  Pet.  52;  General  Mutual 
Ins.  Co.  V.  Benson,  o  Duer,  108.  fJenenilly,  where  there  is  more  than 
one  cestui  que  trust  and  one  is  joined,  :i]l  sliould  1)6  joined  as  paities. 
First  Nat.  Ins.  f'o.  v.  Saiisimo'.  I-*!"  .Mas.s.  .30;-;  Railway  Go.  v. 
Ailing,  J>9  r.  S.  4(n5.  Buf  a  cestui  que  trust  wiio  has  transferred  his 
interest  need  not  1m-  joined.     Ehlridge  v.  I'utuam,  40  Wis.  2U5. 

iH  Smith  V.  Snciw,  3  Madd.  lo. 

11''  Perrj'  v.  Knf»tt.  r>  Beav.  2^i3. 

""/-.r  f>nrtc  .N'orris,  L.  U..  4  Gli.  2S(>. 

117  Lucas  V.  Payne.  7  Gal.  92:  Sliiiver  v.  Hrainaid.  29  Barb.  25. 
is 


§  ITO  (iKNKKAI,    I'KINCII'LKS.  138 

§  176.  Persons  severally  liaable  on  same  obligation  or  instru- 
ment. Tersons  severally  liable  upon  the  same  obligation  or 
instrument,  ineluding  the  parties  to  bills  of  exchange  and  prom- 
issory notes,  and  sureties  on  the  same  and  separate  instruments, 
may  all  or  any  of  them  be  included  in  the  same  action  at  the 
option  of  the  plaintiff. ^^^  This  section  applies  only  to  written 
obligations.^^*^  It  applies  to  bonds,  as  well  as  bills  of  exchange 
and  promissory  notes;'^  and  to  cases  of  joint  and  several  con- 
tracts.121 

Persons  jointly  and  severally  liable  may  be  sued  together  or 
separately,  at  the  option  of  the  plaintiff.^^  But  in  actions  on 
joint  and  several  obligations,  an  administrator  can  not  be  joined 
with  the  survivor,  because  against  one  the  judgment  would  be 
lie  bonis  testatoris,  and  against  the  other  dc  bonis  propriis}^^ 
To  create  a  several  liability,  express  words  are  necessary.^-'*  In 
]*^ew  York,  it  seems  the  plaintiff  may  sue  one  or  all  of  the 
obligors  of  a  joint  and  several  bond;  but  in  strictness  of  law,  he 
can  not  sue  an  intermediate  number.^^     The  practice  is,  how- 

118  Cal.  Code  Civ.  Pro.,  §  383;  and  see  London,  etc..  Bank  v.  Smith, 
101  Cal.  415;  Towell  v.  Powell,  48  id.  235;  AVivaux  v.  Life  Stock 
Co.,  9  Mont.  154. 

119  Spencer  v.  Wbeelock.  11  N.  Y.  Leg.  Obs.  329;  Tibbits  v.  Percy, 
2A  Barb.  39. 

120  People  V.  Hartley,  21  Cal.  585;  82  Am.  Dec.  758;  People  v. 
Love,  25  Cal.  530;  Brainard  v.  Jones,  11  How.  Pr.  5G9.  As  to  when 
the  bondholders  of  bonds  issued  by  a  county  should  be  made  parties 
defendant  in  suit  against  the  county,  see  Hutchinson  v.  Burr,  12 
Cal.  103;  Pattei-son  v.  Supervisors  of  Yuba  County,  id.  106.  In 
Oregon,  the  sureties  on  an  executor's  bond  can  not  ])e  sued  until 
after  default  in  the  Probate  Court.  Hamlin  v.  Kennedy,  2  Oreg 
91;  Laws  of  Oreg.,  18G6,  p.  55. 

121  Humphreys  v.  Crane,  5  Cal.  173;  Steams  v.  Aguirre.  6  id.  176. 

122  Enys  V.  Donnithorne.  2  Buit.  1190;  Eccleston  v.  Clipsham.  1 
Saund.  153;  Alfred  v.  Watkius,  1  C.  R.  .343;  Kelsey  v.  Bradbury, 
21  Barb.  531;  Parker  v.  Jackson,  16  id.  33;  Brainard  v.  Jones,  11 
How.  Pr.  569;  De  Kidder  v.  Schermerhora,  10  Barb.  638;  Snow  v. 
Howard,  25  id.  55;  Kurtz  v.  Forquer,  94  Cal.  91;  Hurlbutt  v.  Saw 
Co.,  93  id.  55;  Lux  v.  McLeod,  19  Col.  465. 

123  May  v.  Hanson,  6  Cal.  (542. 

124  Brady  v.  Reynolds,  13  Cal.  31. 

i25Lf.roy  V.  Shaw.  2  Duer,  626;  Carman  v.  Plass,  23  N.  Y.  286; 
Minor  v.  Mechanics'  Bank  of  Alexandria,  1  Pot.  S.  Ct.  46;  Amis 
V.  Smith,  16  id.  303:  Brainard  v.  Jones.  11  How.  Pr.  569;  Loomis  v. 
Brown,  16  Barb.  32.".;  Phalen  v.  Dingee,  4  E.  D.  Smith,  379;  Allen 
V.  P'osgate,  11  How.  Pr.  218. 


1 


139  ACTIONS   ARISING    FROM    CONTRACTS,    ETC.  §  176a 

ever,  different  in  California,  where  one  or  all  of  any  inter- 
mediate number  may  be  made  defendants,  at  the  option  of  the 
plaintiff.^^  So,  also,  in  eases  of  a  promissory  note,  and!  mort- 
gage to  secure  the  samr.^^  Although  the  several  parties  to 
a  bill  or  note  may  be  sued  in  one  action,  yet  their  being  so  sued 
does  not  make  them  Jointly  liable,^-**  or  joint  debtors.^^^  The 
common-law  rule,  that  where  defendants  are  sued  on  a  joint 
contract,  recovery  must  be  had  against  all  or  none  is  modified 
by  the  Code.^^°  But  one  of  two  joint  debtors,  not  served  with 
process,  is  not  a  proper  party  defendant  in  an  action  upon  the 
judgment  against  the  party  on  whom  service  of  process  was 
made.^^^  So,  where  joint  debtors  reside  in  different  states,  they 
may  be  sued  separately.^^^  It  seems  that  different  parties,  lia- 
ble for  the  same  sum,  but  under  different  contracts,  can  not  be 
joined  in  the  same  action.^^^  So  held  in  JSTew  York,  as  to  a 
guaranty  written  under  a  promissory  note.^"*  And  that  the 
guarantor  can  not  be  sued  in  the  same  action  with  the  maker.^^^ 
Tt  was  there  held,  also,  that  the  liability  of  a  purchaser  and 
his  guarantor  is  several. ^^'^    So,  also,  of  a  lessee  and  his  surety. ^^^ 

§  176a.  Joinder  of  parties  not  bound.  "Where  a  mining  com- 
pany and  its  manager  are  both  sued  as  principal  for  damages 

126  Lewis  V.  Clarkiu,  18  Cal.  400;  see,  also,  Teople  v.  Love,  2.")  Id. 
520;  Code  Civ.  I'ro.,  S  ^Si. 

127  Eastman  v.  Tunnan,  24  Cal.  379. 

128  Alfred  v.  Watlvins,  1  Code  R.  (N.  S.)  343. 

i2fl  Kel.sey  v.  Bradbury,  21  Barb.  531;  Farmers'  Bank  v.  Blair,  44 
id.  042. 

130  Cal.  Code  Civ.  Pro.,  §  989;  People  v.  Fnsbee,  18  Cal.  402;  Lewis 
V.  Clarkin,  18  id.  399. 

131  Tay  ct  al.  v.  ITawley,  39  Cal.  93. 

132  Brown  v.  Hinlsall.  29  Barb.  .549. 

i'!3  Allen  v.  Fosjrato,  11  IIow.  I'r.  218;  Gloneoe  Mut.  Ins.  Co.  v. 
Harold,  20  Barb.  2*.>S;  Dc  Bidder  v.  Sclienufrliorn,  10  id.  038;  see, 
also,  Brown  v.  Curtiss,  2  .\.  Y.  225;  Haikcr  v.  Cassidy,  IG  Barb. 
1T7;  Wiiite  v.  Low,  7  id.  2<(4. 

134  Brewster  v.  Silence,  s  .\.  Y.  207;  atlirniinK  S.  O.,  11  Barli.  144; 
Kclsey  v.  BradbuiT,  21  id.  I IO;  .Xl'iPd  v.  ^Vatkins,  1  C.  R.  (N.  S.) 
.''.43;  I>nii»('r  v.  Snow,  20  .\.  Y.  :'.;'.l;  75  Am.  Dec.  408;  Churcli  v. 
Brown.  29  liarb.  480. 

13.'.  Allen  V.  Fosfiate.  11    How.  I'r.  213. 

I3»i  Leroy  v.  Shaw,  2  Duer,  52<!;  SjK'ncer  v.  Wheolock,  11  Leg.  Ob. 
.'',29;  bnt  see  Cal.  Code  Civ.  T'ro..  §  383,  and  Civil  Code,  title 
"  Ne^rofialile  Instruments." 

137  1'Laleu  v.  Dingee,  4  E.  D.  Smitli,  379. 


§  irob 


GKNEltAL    PRINCIPLES.  140 


for  breach  of  contract,  the  company  has  no  ground  to  com- 
plain because  the  manager,  who  is  not  bound,  is  made  a  party  to 
the  suit,  if  in  fact  the  company  is  bound  by  the  contract.^^* 

§  176b.  Joinder  of  corporation.  In  an  action  by  a  stock- 
holder seeking  relief  against  directors  who  are  improperly  di- 
verting the  funds  of  the  corporation,  it  is  not  necessary  to  join 
as  parties  directors  whose  acts  are  not  complained  of,  but  it  is 
necessary  that  the  corporation  should  be  joined,  as  the  action, 
though  in  the  name  of  the  plaintiff,  is  in  reality  in  behalf  of  the 
corporation.^^^ 

138  Ruffatti  V.  Lexington  Min.  Co.,  10  Utah,  386. 
lae  Wickersham  v.  Crittenden,  93  Cal.  17. 


PAKT  SECOND. 

ANALYSIS  OF  PLEADINGS. 


CHAPTER  I. 

OF  PLEADINGS  IN  GENERAL. 

§  177.  Pleadings  are  defined  by  the  Code  of  Civil  Procedure 
of  California  as  follows: 

The  pleadings  are  the  formal  allegations  by  the  parties  of 
their  respective  claims  and  defenses,  for  the  judgment  of  the 
court. 

The  forms  of  pleading  in  civil  actions,  and  the  rules  by  which 
the  sufficiency  of  the  pleadings  is  t-o  be  determined,  are  those 
prescribed  in  this  Code. 

The  only  pleadings  allowed  on  the  part  of  the  plaintiff  are: 

1.  The  complaint; 

2.  The  demurrer  to  the  answer. 
And  on  the  part  of  the  defendant: 

1.  The  demurrer  to  the  complaint; 

2.  The  answer.^ 

The  definition  given  by  Chitty^  is  this:  "  Pleading  is  the 
ptatement  in  a  logical  and  legal  form  of  the  facts  which  consti- 
tute the  plaintiff's  cause  of  action,  or  the  defendant's  ground  of 
defense;  it  is  the  formal  mode  of  alleging  that  upon  the  record, 
which  would  be  the  support  of  the  action  or  the  defense  of  the 
party  in  evidence." 

1  Tal.  T'odc  riv.  Pro..  §S  420-IL'li.  Similar  provisions  aro  found 
In  the  Cfxlcs  of  all  the  states,  except  that  in  some  states  a  roply 
to  the  answer  is  rf(|nirf'<l  in  cfrtain  rases. 

2  1  niiit.  r'l.  2.'',.'..  A  i>etition  ff>r  letters  of  administration  Is  a 
pleadlntr.  iMifT  v.  Duff,  71  Cal.  ."1.'{.  "Written  pleadinf,'s  are  only 
rerpiired  to  he  filed  in  ennses  firi^rinally  bejrnn  in  courts  of  record. 
Thome  v.  Ornaner.  8  Col.  3.''>3.  Fillnfr  iileadinps  under  Colorado 
Code  of  188r>.    See  Haley  v.  Breeze,  10  Col.  167. 


g^  178,   17l»  ANAI.VSIS    Ol-    I'LKADINGS.  142 

§  178.  Object  of  pleading  —  the  issue.  The  object  of  plead- 
ing is  the  production  ol'  u  nuiteriai  issue  between  the  parties; 
that  iSj  a  material  matter  of  law  or  fact  affirmed  iipon  the  one 
side  and  denied  upon,  (he  other,  and  which  is  tiio  matter  dis- 
puted between  the  parties  and  to  be  tried  or  determined  by  the 
court  or  jury.  Issues  are  of  two  kinds:  of  law  and  of  fact.  An 
issue  of  law  is  raised  by  a  demurrer,  whieli  admits  the  facts 
stated  in  the  pleading  demurred  to,  and  denies  tliat  the  law 
applicable  to  those  facts  entitles  the  plaintilf  to  maintain  his 
action,  or  that  the  facts  stated  in  the  answer  constitute  a  de- 
fense; or  points  out  some  defect  which  in  law  ought  to  prevent 
the  party  whoso  pleading  is  demurred  to  from  obtaining  the 
relief  sought  in  his  complaint  or  answer.  As  will  be  seen  here- 
after, these  defects  must  appear  upon  the  face  of  the  pleading 
demurred  to.  An  issue  of  fact  is  raised:  1.  By  a  denial  in  the 
answer  of  facts  stated  in  the  complaint;  and,  2.  By  operation 
of  the  Code  where  new  matter  in  the  answer  is  considered  as 
denied  by  the  plaintiff.^ 

§  179.  Forms  of  action  abolished.  Under  the  Code  of  Cali- 
fornia,^ and  in  other  states  which  have  adopted  a  sirnilar  system 
of  procedure,  only  one  form  of  civil  action  exists.  By  this  is 
meant  that  the  formal  distinctions  between  the  different  com- 
mon-law actions,  assumpsit,  debt,  covenant,  trespass,  etc.,  and 
also  between  actions  at  law  and  in  equity,  are  swept  away.^ 
Formerly  it  was  necessary  to  decide  what  form  of  action  must 
be  resorted  to  in  order  to  obtain  the  relief  justified  by  the 
facts,  and  this  form  of  action  must  be  stated  in  the  writ,  though 
briefly,  as  that  the  defendant  is  required  to  answer  the  plaintiff 
"  in  an  action  upon  promises,"  or  "  or  in  an  action  of  debt," 
etc.,  and  this  form  of  action  must  be  adhered  to  in  the  declara- 

3  The  Code  of  Ohio  and  some  other  states  requires  a  replication 
by  the  plaintiff  to  now  matter  set  up  in  the  answer.  Such  a  plead- 
ing as  an  "  additional  answer  "  is  nnlcnown  to  tlie  Code,  but  wliere 
the  plaintiff  without  questioning  it  by  motion  or  otherwise  in  the 
fir.st  instance,  joins  issue  tliereon,  it  makes  one  of  the  issues  of  the 
case.  Greig  v.  Clement,  20  Col.  167.  There  is  no  law  in  Illinois 
compelling  the  parties  to  prepare  and  file  pleadings  if  they  ai'e 
content  to  have  their  case  presented  and  heard  without  them. 
Vider  v.  Chicago,  00  111.  App.  59r.. 

4  Cal.  Code  Civ.  Pro.,  ?  ."^OT. 

•'•  Miller  v.  Van  Tassel,  24  Cal.  458;.Tandemp  v.  Hansen,  5  S.  Dak. 
164. 


143  PLEADINGS  IN   GENERAL.  §179 

tion;  so  that  the  pleader  was  required  to  decide  before  he  had 
the  writ  issued  what  his  form  of  action  must  be,  and  in  many 
cases  it  was  not  easy  to  determine  what  the  form  shoukl  be;  and 
the  consequences  of  a  n»stake  were  serious.  So  he  was  re- 
quired to  determine  at  his  peril  whether  he  must  resort  to  a 
court  of  law  or  a  court  of  equity.  But  now  these  formal  dis- 
tinctions are  taken  away,  and  the  pleader  is  required  to  state 
the  facts  which  constitute  his  cause  of  action;  and  whatever 
relief  those  facts,  being  established,  may  entitle  him  to,  he  will 
obtain  whether  legal  or  equitable,  or  both,  or  whether  they 
would  have  made  a  case  in  assumpsit,  debt,  case,  or  other  form 
of  common-law  action.  It  was  held  by  the  Supreme  Court  of 
California,  that  "  under  the  Code  of  Practice,  we  have  but  one 
system  of  rules  respecting  pleadings,  which  governs  all  cases 
both  at  law  and  in  equity.  These  rules  are  clearly  laid  down  in 
the  Practice  Act;  and  although  in  construing  that  act  we  resort 
to  former  adjudications,  and  the  old  and  well-established  princi- 
ples of  pleadings  at  common  law,  yet  the  former  distinctions 
which  existed  between  common  law  and  equity  pleadings  no 
longer  exist."' 

In  the  New  York  Code  of  Procedure,  section  G9,  the  distinc- 
tions Ijetween  actions  at  law  and  suits  in  equity  is  expressly 
abolished.  In  Ohio,  Iowa,  Nevada,  Oregon,  Idaho,  xVrizona 
Territory,  and  most  of  tlie  states  and  teiTitories  of  the  Union, 
as  well  as  New  York  and  California,  "  the  distinction  in  the 
modes  of  obtaining  relief  which  formerly  characterized  the  pro- 
ceedings in  courts  of  law  and  in  equity  are  abolished,"  biit  only 
as  to  the  forms  of  actions,  and  not  as  to  the  principles'  which 
govern  them.''^  In  Cole  v.  Keynolds,  18  N.  Y.  74,  Harris,  J., 
says:  "By  the  Code,  the  distinctions  between  actions  at  law 
and  suits  in  equity  are  abolished.  The  course  of  proceeding  in 
both  olaspf'S  of  ca.ses  is  now  the  same,     "\^'^lether  the  action 

« Bowen  v.  Anbroy.  22  Cal.  fiTO;  Conlier  v.  Rchloss,  12  id.  14.3; 
rnyne  v.  Treadwfll,  10  id.  24?,;  Kowe  v.  BlalcP.  DO  id.  107:  H."  Am. 
Bt.  Bep.  4.'">.  Rnbstatifp,  and  not  form,  is  now  rcirarded.  AYads- 
wortJi  V.  Railway  To.,   IS  Col.  000. 

7Whlft.  TV.  .^■..?;  seo.  nlso.  1  Van  Santv.  PI.  .W;  Xnsli's  O.  P.  2; 
2  Till.  &  Sli.  1:  Swann'.s  PI.  21:  Stat,  of  Towa.  §  2008:  Trapliairon  v. 
Trapliatrfin.  40  H.irh.  .^''.7;  MfPnr.K'y  v.  Wellnian.  42  Barb.  .'',00; 
Pnnncil  v.  Kftpltaa.  10  A1>1».  Pr.  20.':  Vnn  1{ensselaer  v.  Road, 
20  N.  V.  .f.O.S;  Dcnnmn  v.  Price.  40  Bnrl>.  210;  Bnrra.^o  v.  Mining 
Co..  12  Orep.  100;  T'nitcd  Stntea  v.  Bisnl  S  Mont.  20;  Tandnnip  v. 
ITanM'n,  5  S.  r>ak.  104;  and  see  MSI,  f^ost. 


§^  180,   ISI  AxNAJ,VS18    OF    PLEADINOS.  144 

depeiuls  upon  logal  princii)les  or  equitable,  it  is  still  a  civil 
action,  to  be  coniiiu'iu'ed  and  pi'osecutecl  witliout  reference  to 
this  ilislinction.  lUit  while  this  is  so  witli  reference  to  the 
form  and  coiirse  ol'  proceeding  in  the  action,  the  principles  by 
Avhich  the  rights  of  the  parties  are  to  be  determined  remain 
unchanged.  The  Code  has  given  no  new  cause  of  action.  In 
some  cases  parties  are  allowed  to  maintain  an  action  who  could 
not  have  maintained  it  before,  but  in  no  case  can  such,  an  action 
be  maintained  where  no  action  at  all  could  have  been,  main- 
tained before  upon  the  same  state  of  facts.  If,  under  the 
former  system,  a  given  state  of  facts  would  have  entitled  a 
party  to  a  decree  in  equity  in  iiis  favor,  the  same  state  of  facts 
now,  in  an  action  prosecuted  in  the  manner  prescribed  by  the 
Code,  will  entitle  him  to  a  judgment  to  the  same  effect.  If  the 
facts  are  such  that,  at  common  law,  the  party  would  have  been 
entitled  to  a  judgment,  he  will,  by  proceeding  as  the  Code 
requires,  obtain  the  same  judgment."  What  was  an  action 
at  law  before  the  Code,  is  still  an  action  founded  on  legal  prinr 
ciples;  and  what  was  a  bill  in  equity  before  the  Code  is  still  a 
civil  action  founded  on  principles  of  equity.^ 

§  180.  Distinctions  between  legal  and  equitable  rights  pre- 
served. In  adjudications  under  the  New  York  Code,  it  is 
held  that  although  the  forms  of  actions  at  law  and  in  equity  are 
abolished,  yet  that  even  in  the  pleadings,  or  the  manner  of  stat- 
ing the  facts  which  constitute  plaintiff's  cause  of  action,  there 
is  still  a  broad  distinction  between  cases  where  legal  instead 
of  equitable  relief  is  asked.  Following  in  the  same  track,  the 
Supreme  Court  of  California  has  held,  "  the  distinction  be- 
tween law  and  equity  is  as  marked  as  ever,  though  there  is  no 
difference  in  the  form  of  a  bill  in  chancery  and  a  common- 
law  declaration  under  our  system."^ 

§   181.  Legal    and    equitable    relief    granted    in    same    action. 

Legal  and  equitable  relief  may  l)e  asked  for  in  the  same  action, 
but  the  wrongs  suffered  must  be  those  arising  out  of  or  from 

8  Nash's  PI.  &  Pr.,  vol.  1,  p.  4:  see,  also,  Cal.  Code  Civ.  Pro., 
5  307:  Hurlbutt  v.  Raw  Co.,  93  Cal.  .55;  Hosiers  v.  Duhart.  97  id.  500; 
Aiken  v.  Aikon,  12  Orej?.  20,3;  Weber  v.  Rothchild,  15  id.  38.5. 

9Rowe  V.  Chandler,  1  Cal.  167;  Dewitt  v.  Hayes,  2  id.  463;  56 
Am.  Dec.  352;  Lubert  v.  Chanvitean,  3  Cal.  458;  58  Am.  Dee.  41.5; 
Smith  V.  Rowe,  4  Cal.  6;  Wissins  v.  ^ToDonald,  18  id.  127;  Howard 
V.  Tiffany,  3  Sandf.  695;  1  Van  Santv.  PI.  41. 


145  PLEADIJS'GS   li^    GEXEEAL.  §  181 

one  and  the  same  transaction,  and  which  would  be  consistent 
with  the  relief  asked.^"  In  the  case  of  The  Globe  Ins.  Co.  v. 
Boyle,  21  Ohio  St.  119,  it  was  held  that  an  action  might  be 
brought  to  reform  a  coutTact,  and  to  recover  on  said  contract 
60  reformed;  and  if,  when  reformed,  the  cause  of  action  would 
have  been  a  common-law  action,  then  the  court  will  first  decide 
upon  the  equitable  case  to  reform  the  contract,  and  then  sub- 
mit the  case  to  the  jury  on  the  contract  so  reformed.  So  also 
when  relief  is  asked  for  in  the  alternative.^^  For  a  party  may 
have  such  relief  as  is  adapted  to  his  case  from  the  proofs. ^^  It 
will,  therefore,  be  observed  that  relief  is  now  administered 
without  reference  to  the  technical  and  artificial  rules  of  the 
common  law.^^  The  prayer  of  a  complaint  is  not  the  subject  of 
a  demurrer.^*  The  intention  of  the  legislature  was  evidently 
to  adopt  a  "  uniform  and  complete  system,"^^  whereby  the  old 
and  cumbersome  forms  of  pleading  would  be  dispensed  with. 
Yet  the  facts  constituting  plaintiff's  cause  of  action  are  re- 
quired to  be  stated  as  fully  under  the  new  practice  as  under  the 
old.^^  Legal  and  equitable  relief  may  be  had  in  the  same  ac- 
tion as  the  nature  and  cause  of  the  action  may  require,  but  in 
order  that  equitable  relief  may  be  had,  equitable  pleadings  must 
be  interposed. ^^     But  the  plaintiff  may  be  awarded  any  relief 

10  Gray  ct  al.  v.  Dougherty,  2.">  Cal.  2(i();  More  v.  Massini,  32  id. 
590. 

n  Stevenson  v.  Buxton.  ].">  Abb.  Vr.  ?,'>2:  Barlow  v.  Scott,  24  X.  Y. 
-Kt.  A  coiniilaint  which  seeks  to  r(>forni  a  mortgage,  and  to  enforce 
it  as  reformed,  states  but  one  cause  of  action.  Ilutcliinsou  v. 
Ainswortli,  73  Cal.  4.".2. 

12  White  V.  Lyons,  42  Cal.  270;  Van  Duson  v.  Young,  20  N.  Y. 
2!i:  I»ennian  v.  Prince,  4<i  Barb.  210;  Hammond  v.  Cockle.  2  Hun 
(N.  Y.t,  49.5;  Byxbio  v.  Wood.  24  N.  Y.  GIO;  White  v.  Madison.  2G 
Id.  117;  TiioTiipsiHi  V.  Caton,  3  Wash.  Ter.  31. 

i"!  Itf»\ve  V.  Chandler,  1  Cal.  KiS;  .b)nes  v.  Steanisliip  "  Cortes." 
17  id.  4S7;  79  Am.  Dec  112:  White  v.  Lyons.  42  Cal.  370;  (Jrain  v. 
.\Mrich.  3S  id.  r.l4. 

i»  Alih«.r  V.  Coidieiiii.  .';s  Cal.  2.30;  !i;)  Am.  Dec.  423;  Hale  v.  Dmaha 
National  Bank,  40  .\.  Y.  {\'2,i\.  In  a  case  in  e(|uity,  where  issues 
are  Joined,  the  court  is  autliorized  to  grant  any  relief  consistent 
with  the  case,  atid  embraecd  witidii  tlie  issues,  though  not  siiecili- 
f.illy  prayed  for.  Scoit  v.  I,uiiil)er  Co..  07  Cal.  7."'»;  Zellerl)acli  v. 
.\llonlK-rg,  00  id.  :,1. 

''■  Humiston  v.  Siiiitli.  21   C;ii.    l.'M. 

11  Miller  V.  \aii  'i'assel,  21  Cal.  4(..'{;  Conaughty  v.  Nichols,  42 
N.  Y.  s;;.  S7. 

17  Home  Insurance  Co.  v.  Railroad  Co.,  10  C(d.  4G. 

Vob.  ]— 19 


§  182  ANALYSIS    OF    PLEADINGS.  140 

10  which  his  pleading  and  prooi"  entitle  him,  regardless  of  the 
prayer  of  his  eonii)laint.''*  And  it  is  held  that  althongh  an 
action  may  be  commenced  as  an  equitable  one,  yet,  where  there 
is  nothing  to  give  a  court  of  equity  jurisdiction  thereof,  the 
court  may  permit  it  to  be  tried  as  an  action  at  law,  if  the  de- 
fendant is  not  thereby  prevented  from  having  a  fair  trial.''** 
But  it  is  error  to  compel  the  trial  of  a  cause  as  an  action  at  law, 
when  both  the  complaint  and  answer  invoke  the  equity  powers 
of  tlie  court. ^  The  rigid  formalism  and  subtle  distinctions 
found  in  the  rules  governing  the  common-law  forms  of  action 
are  inapplicable  under  the  modern  plan  of  procedure.  Under 
this  system,  mere  forms  of  action  are  cast  aside,  and  every  ac- 
tion is  now,  in  effect,  a  special  action  on  the  case.^^  A  com- 
plaint need  only  state  the  cause  of  action  in  ordinary  and  con- 
cise language,  and  if  the  facts  alleged  and  proved  are  such  as 
to  entitle  the  plaintiff  to  relief  under  any  of  the  recognized  forms 
of  action  at  common  law",  they  are  sufficient  as  the  basis  of  re- 
lief, whatever  it  may  be.^^ 

§  182.  Of  wliat  pleadings  consist.  Pleading  consists  in  al- 
leging facts  upon  the  one  side  and  denying  them  upon  the 
other.^^  But  the  facts  so  alleged  always  presuppose  some  rule 
of  law  applicable  to  them.^'*  And  hence  in  all  complaints,  while 
the  law  governing  the  facts  and  the  facts  coming  witliin  the 
law,  taken  together,  exhibit  the  cause  of  action,  yet  the  facts  are 
expressed,  while  the  law  is  understood;  for  it  would  be  of  no 
avail  "  for  either  party  to  state  facts  of  which  no  principle  of 
law  could  be  predicated  in  his  favor."-^  Therefore  the  pleader 
first  inquires  by  reference  to  the  law  for  a  remedy,  and  if  he 
finds  there  is  no  legal  remedy,  he  at  once  knows  there  has  been 
no  wrong  known  to  tlie  law  committed,  and  that  the  courts  can 

IS  Ross  v.  Purse.  17  Col.  24.  Instance  of  equitable  relief  granted 
in  legal  action.     See  Hockaday  v.  Commissioners,  1  Col.  App.  362. 

59  Surber  v.  Kittenger,  0  Wash.  St.  240;  and  see  Kleeb  v.  Bard, 
7  id.  41. 

20  Distler  v.  Dabney,  7  Wash.  St.  431. 

21  Brown  v.  Bridges,  81  Iowa,  14.");  Matthews  v.  McPherson,  65 
N.  C.  189. 

22  Rogers  V.  Duhai-t,  97  Cal.  ,500;  and  see  Stevens  v.  Mayor,  etc., 
84  N.  Y.  296;  People's  Bank  v.  Mitchel.  73  id.  415;  Mursten  v.  Cur- 
ley,  90  id.  372;  StraiTi  v.  Badd,  30  S.  C.  342;  14  Am.  St.  Rep.  905. 

2'i  Bnddington  v.  Davis,  6  How.  Pr.  402. 

24  Could's  PL,  §§  2,  3. 

25  Id.,  §  2. 


147  PLEADINGS   IN   GENERAL.  §  183 

give  no  relief.  As  fictitious  issues  are  by  the  Code  abolished,^^ 
analogies  of  the  old  system  of  pleading  are  not  in  all  cases  a 
safe  guide  under  the  Code.^  Two  prominent  elements  intended 
in  the  new  system  are,  that  falsehood  shall  not  be  put  upon 
the  record,  and  that  the  pleadings  should  disclose  the  facts 
relied  on  in  support  or  defense  of  an  action. 

§  183.  Distinction  between  the  pleadings  and  the  action. 
The  difference  between  the  pleadings  and  the  action  is  that  the 
pleadings  show  the  nature  of  the  demand,  and  the  defense;  or, 
in  common  terms,  the  pleadings  are  the  complaint  and  answer;^ 
while  the  action  is  the  history  of  the  whole  cause,  including: 
1.  The  complaint,  which  names  the  parties,  and  states  the  in- 
jury suffered;  2.  The  process,  which  brings  the  party  into  court 
to  answer  as  to  these  injuries;  3.  The  answer  of  defendant,  which 
admits,  or  denies,  or  avoids,  etc.;  4.  The  trial,  wherein  the  nature 
of  the  demand  and  defense  are  presented  by  legal  proofs;  5. 
The  judgment,  wherein  the  court  allows  or  refuses  the  remedy 
asked;  6.  The  execution,  by  which  the  legal  rights  of  the  parties 
are  obtained.  It  is  provided  by  the  Code  that  "the  pleading 
on  the  part  of  the  plaintiff  shall  be  the  complaint,  and  demurrer 
to  defendant's  answer;  and  on  tlio  part  of  the  defendant,  the  de- 
murrer and  answer."^  Since  the  statutes  of  our  state  have  in 
express  terms  defined  what  the  pleadings  are,  it  requires  no  ref- 
erence to  the  text-l)Ooks  on  the  subject  for  further  definition. 
It  is  also  provided  by  statute  that  "  when  a  defendant  is  entitled 
to  relief,  as  against  the  plaintiff  alone,  or  against  the  plaintiff 
and  co-defendant,  he  may  make  a  separate  statement  in  his 
answer  of  the  necessary  facts,  and  pray  for  the  relief  sought, 
without  bringing  a  distinct  cross-action;"'  so  that  parties  liti- 
gant may  settle  all  (luestions  of  difference  between  them,  so  far 
as  is  practicable,  in  one  action,  and  not  litigate  by  piecemeal. 
Interminable  litigation  is  not  favored  by  our  h^gislature  nor  by 
our  courts,  tlie  decisions  being  nnmerons  and  ))ointod  on  this 
subject.  Tt  will  1)0  niir  purpose,  therefore,  to  consider  the  sub- 
ject of  ))leaflings  heroin;  rcsors'ing  the  consideration  of  the 
action  for  future  chapters,  whore  the  various  steps  will  be  con- 
fridorod  undor  thoir  appropriate  hoads. 

afl  New  York  fodr.  of  TVoopdiirf,  §  72;  Snoll  v.  Loucks,  12  Barb, 
885. 
27  Bush  V.  rroflser.  11  N.  Y.  347. 
2«1  Pnrr.  I-nw  Dirt.  38. 
»  Cal.  Code.  8  422. 


§  184  ANALYSIS   OF    PLEADINGS.  148 

§  184.  Facts  only  must  be  stated.  In  pleading  under  the 
Code,  it  is  the  invariable  iiile  that  facts  only  should  be  stated."*' 
The  reasons  for  the  existence  of  these  facts  are  not  to  be  given, 
but  only  the  naked  facts,  disrobed  oi"  any  circumstance  con- 
nected with  or  pertaining  to  them;  and  this  without  inferences 
or  conclusions,  alignments,  hypothetical  statements,  or  state- 
ments of  the  law,  or  of  the  pretenses  of  the  opposite  party. 

For  example:  If  A.  is  indebted  to  B.  in  the  sum  of  five  hun- 
dred dollars,  state  the  fact  and  for  what  he  is  indebted;  if  for 
work  and  labor  done  say  so,  and  aver  what  it  is  reasonably 
worth  if  there  was  no  special  contract,  and  that  the  same  is 
due  and  unpaid,  and  stop  there;  if  for  goods  sold  and  deliv- 
ered, state  that  fact,  and  when,  where,  and  to  whom  sold,  what 
they  are  worth  and  what  is  due,  and  stop  there;  if  on  a  promis- 
sory note,  state  the  amount  of  indebtedness,  and  that  it  is  upon 
a  promissory  note  bearing  date,  etc.  (the  note  is  usually  copied, 
but  not  necessarily  so),  and  that  the  note  has  not  been  paid. 
Of  course,  in  every  case  judgment  must  be  demanded  for  the 
amount  due,  stating  how  much,  and  for  interest,  if  any,  and 
costs.  In  the  first  example,  for  "  work  and  labor  done,"  it  is 
not  in  general  necessary  to  state  how  A.  happened  to  work  for 
B.,  or  how  B.  happened  to  employ  A.  Such  and  other  kindred 
facts  might  become  valuable  in  the  course  of  the  trial  as  evi- 
dence, but  not  as  averments  in  the  pleading.  In  the  second 
example,  "  for  goods  sold,"  it  is  not  necessary  to  aver  how  they 
were  sold,  or  why  they  were  sold,  nor  anything  further  than 
that  they  were  sold  to  B.  at  his  request  for  so  much  money,  and 
that  B.  has  failed  to  pay  for  them.  The  kind  of  goods  sold, 
and  the  price  and  value  of  each  article,  are  questions  of  evi- 
dence which  need  not  be  stated  in  the  pleading.  In  the  third 
example  it  need  not  be  stated  tliat  the  note  was  made  for  a 
valuable  consideration,  or  that  it  was  made  for  any  considera- 
tion. It  is  presumed  to  have  been  made  for  a  consideration, 
and  if  it  was  not  really  so  made,  the  defense  will  develop  the 
fact.  It  will  be  seen,  therefore,  that  the  facts  must  be  care- 
fully distinguished  from  the  evidence  of  the  facts,  since  the 

30  Green  v.  Palmer,  1.5  Cal.  411;  7(]  Am.  Dec.  492;  Hicks  v.  Murray, 
43  Cal.  515;  1  Van  Santv.  224;  2  Till.  &  Shear.  8;  Boparflus  v.  Life 
Ins.  Co.,  101  N.  Y.  328;  Laffey  v.  Chapman,  0  Col.  304;  Robinson 
T.  Canal  Co.,  2  Col.  App.  17.  Facts,  not  forms,  are  the  es.sential 
requisites  of  pood  pleading,  though  approved  forms  may  aid  the 
pleader  in  settinfj  fortli  the  facts  upon  which  the  rights  of  parties 
depend.     Cramer  v.  Oppenstein,  16  Col.  495. 


149  PLEADl^US    IN    GENERAL.  §  185 

latter  pertains  to  the  trial  and  not  to  the  pleadings.  Argument 
is  improper  in  a  pleading,  and  should  never  be  inserted,^^  as.  a 
good  pleading  should  be  true,  unambiguous,  consistent,  and 
certain  to  a  common  indent,  as  to  time,  place,  pei-sou,  and 
quantity,  and  not  redundant  or  argume^itative.^- 

§  185.  Conclusions  of  law  not  to  be  alleged.  An  allegation  of 
a  legal  conclusion  is  one  which  gives  no  I'aet,  but  matter  of  law 
only.^3  Such  averments  are  not  tolerated  by  our  practice;  the 
facts  from  which  the  conclusions  follow  must  be  averred,  but 
not  the  conclusions.  If  such  conclusions  are  averred  and  de- 
nied, no  issue  is  raised;  if  they  are  not  denied,  they  are  not 
admitted.^*  That  which  is  implied  by  law  need  not  be  pleaded ;^^ 
and  presumptions  of  law  should  not,  or  at  least  need  not,  be 
averred.^®  Examples  and  illustrations  of  allegations  that  have 
been  held  to  be  mere  conclusions  of  law  are  given  in  the  note.^''' 

31  1  Van  Sautv.  355;  Steph.  PI.  383. 

32  Boyce  v.  Brown,  7  Barb.  85;  Green  v.  Palmer,  15  Cal. 
414;  76  Am.  Dec.  492;  Gallagher  v.  Dunlap,  2  Nev.  32l);  Alderman  v. 
French,  1  Pick.  1;  11  Am.  Dec.  114;  Atwood  v.  Caswell,  19  Pick. 
493;  Austin  v.  Parker,  13  id.  222. 

33  Hatch  V.  Peet,  23  Barb.  583. 

34  1  Van  Santv.  244;  1  Whitt.  Pr.  503;  Levinson  v.  Schwartz.  22 
Cal.  229;  SS  Am.  Dec.  (51;  Lijihtner  v.  Menzell,  35  Cal.  4.52;  CautLne 
V.  Clark,  41  Barb.  (;2i»;  Mc(;ee  v.  Barber.  14  Pick.  212;  White  v, 
Madison,  20  X.  Y.  117;  Ilaight  v.  Child,  34  Barb.  180;  Commercial 
Bank  of  Itocliester  v.  Rochester,  41  id.  341;  Butler  v.  VIele,  44 
Id.  100;  Carter  v.  Koezley.  9  Bosw.  .583;  Campbell  v.  IXvlor.  2  West 
Coast  Rep.  541.  Allegations  of  legal  conclusious  do  not  aid  a  com- 
plaint.    Downing  v.  Ditch  Co.,  20  Col.  540. 

3r.  Wilholt  V.  Cunningham,  87  Cal.  4.53. 

86  Henke  v.  Eureka,  etc.,  Assoc,  100  Cal.  429;  see-  §  212.  past. 

37  Arose  out  of  the  transaction-—  That  an  indebtedness  ai-nse  out  of 
the  transaftion  is  a  conclusion  frf  law.  Bix>wn  v.  Biukin;iham, 
11  Abb.  Pr.  38fc.  Assent-—  The  knowledge  and  assent  of  a  party  is 
a  legal  conclusion.  Moore  v.  Westervelt,  2  Duer,  .59;  1  Bosw.  357; 
21  N.  Y.  103.  So  In  the  ca.se  of  a  jirfmiissoiy  note  made  by  a  copart- 
ner. Keineys  v.  Rieliards.  11  Barb.  312.  A sslg'tcr..—  An  nlh^gatlon 
that  a  (lesiguated  jierson  is  not  now,  and  never  has  been,  "  legally 
ai)polnted  assignee  "  for  a  second  person,  is  dennuTable  as  a  con- 
clusion. Smith  V.  Kaufman.  3  Okl.  .508.  Bona  fidd  holder  and  owner-— 
That  a  party  is  the  holder  and  owner,  a-s  of  a  promissory  note. 
White  V.  Brown.  41  IIow.  I»r.  2S2;  but  see  Ilolstein  v.  Rice,  15  Id.  2. 
BrtM«<f.— WhPthtT  a  can-jer  is  lK>iuid  to  know  the  contents  of  a 
paekat'e.  Berley  v.  .Newtnn.  10  IIov.-.  Pr.  490.  Tliat  the  di'foiidaiit 
was  "  bound  to  rcDalr."    Casey  v.  Mann,  5  Abb.  Pr.  91.    That  de- 


§  1S5  a>;al\sis  of  i'leadijs'gs.  150 

Othor  instances  might  be  enumerated,  but  we  do  not  deem  such 
necoifisary.     If  counsel  were  permitted  to  aver  conclusions  of 

feiulnut  became,  or  was  law  fully  Ixiuiul  by  llie  reiulitlou  of  a  judg- 
ment ajiaiust  him.  IVople  v.  Supervisors,  27  Cal.  055;  I'eople  v. 
Commissioners  of  Fort  Eihvard,  11  Ilow.  Pr.  Si).  Contrary  to  law-— 
That  the  defendants  have  acted  contrary  to  the  act  (statute)  is  a 
conclusion  of  law.  Smith  v.  Lockwood,  13  Barb.  209.  Control  and 
management-—  That  a  defendant,  as  executrix,  controls  and  manage3 
the  estate  of  the  deceased,  and  is  responsible  therefor.  Phinney  v. 
Phinney,  17  How.  Pr.  197.  Credit-— That  the  goods  were  pur- 
chased "  on  credit,"  and  that  the  "  terms  of  credit  "  had  not  expired, 
Leviuson  v.  Schwartz,  22  Cal.  220.  Damages-— That  an  act  com- 
plained of  will  result  in  great  and  irreparable  damage  to  the  plain- 
tiff. McCormick  v.  Kiddle,  10  Mont.  470;  and  see  Boley  v.  Gris- 
wold,  2  id.  447;  Mechanics'  Foundiy  v.  Ryall,  75  Cal.  <>01;  Thorn 
V.  Sweeney,  12  Nev.  251.  Due-—  That  a  certain  amount  is  due 
upon  a  note.  Frisch  v.  Kaler,  21  Cal.  71;  Ryan  v.  HoUiday,  110  id. 
335;  McKyrlng  v.  Bull,  16  N.  Y.  303;  Allen  v.  Patterson,  7  id.  4S0. 
Due  and  owing-—  That  a  sum  is  "  due  and  owing."  Keteltas  v. 
Meyers,  3  E.  D.  Smith,  S3.  Duly-—  If  "  duly  "  has  any  deai-  legal 
signification,  it  is  ^  question  of  law  to  be  determined  on  the  facts. 
Graham  v.  Machado,  0  Duer,  517.  That  the  plaintiff  was  duly  ap- 
pointed chamberlain  was  held  sufficient.  Piatt  v.  Stout,  14  Abb. 
Pr.  178.  That  plaintiff  sued  by  a  guardian  duly  appointed,  if  the 
statement  is  deemed  too  general,  the  proper  course  is  to  move  to 
make  it  definite.  Sere  v.  Colt,  5  Abb.  Pr.  482.  That  the  trustees 
were  duly  appointed.  Conger  v.  Holliday,  3  Edw.  Ch.  570.  That 
the  plaintiff  was  duly  authorized  to  bring  the  action.  Myers  v. 
Machado,  6  Abb.  Pr.  198;  14  How.  Pr.  149.  That  a  meeting  was 
duly  convened  would  imply  that  it  was  regularly  convened.  Peo- 
ple y.  AYalkei-,  23  Barb.  305;  2  Abl>.  Pr.  422.  That  the  location  was 
duly  and  properly  made  according  to  the  provisions  of  an  act. 
People  V.  Jackson,  24  Cal.  (132.  Duty-—  That  it  was  or  is  the  "  duty  " 
of  a  party  to  do  or  forbear  an  act  is  a  conclusion.  City  of  Buffalo 
V.  Hollo  way,  7  N.  Y.  493;  Rex  v.  Everett,  8  B.  «&  O.  114.  Fraud-- 
That  the  in.solvent,  by  making  the  payments  complained  of,  "  did 
thereby  defraud  his  other  creditors."  Dyer  v.  Bradley,  89  Cal. 
557;  and  see  Robinson  v.  Canal  Co..  2  Col.  App.  17.  Indebted-— 
That  a  party  is  indebted  or  remains  indebted.  Qiirtis  v.  Richards, 
9  Cal.  33;  Wells  v.  McPike.  21  id.  215;  Chamberlain  v.  Kaylor,  2 
E.  D.  Sniith,  134;  Hail  v.  Southmayd,  15  Barb.  32.  Or  became  in- 
debted. Cal.  State  Tel.  Co.  v.  Patterson,  1  Nev.  151;  Lightuor  v. 
Menzell,  35  Cal.  452.  In  violation-—  Schenck  v.  Naylor,  2  Duer,  678. 
Judgment--  General  averments  that  a  judgment  was  *'  an  irregular 
and  void  judgment,"  or  w^as  "  irregular  "  and  "  without  any  juris- 
diction or  authority."  Ritchie  v.  McMullen,  159  U.  S.  235.  Lawful 
holder-—  That  one  was  the  "  lawful  holder."  Beach  v.  Gallup,  2 
N.  Y.  Code  R.  66;  but  see  Taylor  v.  Corbiere,  8  How.  Vw  387. 
Lazvful   title    and    unlawfully    withholds.    Lawrence    v.    Wright,    2 


161  PLEADIXGS    IN    GENERAL.  §  185 

law,  pleadings  might  be  valuable  as  briefs,  but  worthless  as 
statements  of  facts,  the  latter  being  the  only  object  of  pleadings. 

Duer,  674;  see,  however,  Walter  v.  Lockwood,  23  Barb.  230;  AValter 
V.  Lockwood,  4  Abb.  Pr.««OT;  Ensign  v.  Sheiiuan,  14  How.  I'r.  439. 
Liable.—  That  one  is  "  liable."  Rex  v.  Upton-ou-Severn,  6  C.  &  P. 
133.  Nearer  of  kin  —  That  a  party  is  "  nearer  of  kin."  Tub.  Adm'r 
V.  Watts.  1  I'aige,  348.  Necessary  supplies-—  That  supplies  furnished 
to  a  vessel  are  necessary.  Tlie  Gustavia,  Blatchf.  &  H.  1S9. 
Obligation— ThSit  he  had  failed  to  fulfill  his  obligations.  Van  Scl-.aack 
V.  Winne,  Iti  Barb.  8.5.  Ordinanec  is  legal  — 'n\aX  an  ordinan.-e  passed 
by  a  municipal  corporation  is  legal.  People  v.  Supervisors,  27  Cal. 
t>55.  Oxi'cy.— That  the  defendant  owes  the  plaintiff  the  sum  before 
mentioned.  Millard  v.  Baldwin,  3  Gray,  484;  Codding  v.  Mans- 
field, 7  id.  272;  Hollis  v.  Kichardson,  13  id.  392.  Orvner.-ThaX  a 
party  is  owner.  Adams  v.  Holley,  12  How.  Pr.  330;  Thomas  v. 
Desmond,  id.  321;  contra,  Davis  v.  Hoppock,  6  Duer,  25(>;  Walter 
v.  Lockwootl,  23  Barb.  233;  4  Abb.  Pr.  307;  McMurray  v.  Gilford, 
.5  How.  Pr.  14;  Bentley  v.  Jones,  4  id.  2(J4;  coini)are  Levins 
v.  Rovegno,  71  Cal.  273:  Turner  v.  White,  73  id.  299.  Owner  and 
Jwlder.— That  plaintiff  is  owner  and  holder  of  a  note.  Poorman  v. 
Mills,  3.".  Cal.  118;  95  Am.  Dec.  90;  approving  Wedderspoon  v. 
Rogers,  32  Cal.  569;  Witherspoon  v.  Van  Dolar,  15  Hoav.  Pr.  206. 
Power  and  authority--  That  a  coiijoration  had  full  power  and  law- 
ful autliority  to  do  a  particular  act.  Branham  v.  Mayor  of  San 
Jose,  24  Cal.  585.  Promised  to  pay-—  That  defendant  promised  to 
pay,  in  the  common  counts  in  assumpsit,  is  a  mere  conclusion  of 
law  from  tlie  facts  stated,  and  need  not  be  averred  under  the  Code. 
Wilkins  v.  Stidgers,  22  Cal.  2;i2.  Prior  appropriation-—  A\h''j:atum  of 
priority  of  ai)propriation  of  the  waters  of  a  natural  stream.  Farmers', 
etc.,  Co.  v.  Southworth,  13  Col.  111.  Release-—  That  a  party  "  did 
execute  a  release  in  full."  Hatch  v.  Peet,  23  Barb.  575.  "  That  a 
settlement  had  no  reference  to  this  claim,  nor  was  the  same  in 
any  way  released  or  affected."  Jones  v.  Plioenix  Bk.,  8  N.  Y.  235. 
Repeated  acknoivledgments--  Bloodgood  v.  Brueii,  8  N.  Y.  366.  Right 
of  possession--  Tliat  right  of  possession  was  forfeited  by  noncom- 
pliance with  rules  and  customs.  Dutch  Flat  v.  Mooney,  12  Cal. 
434;  73  Am.  Dec.  .5.").5.  Sole  otcHrr.— That  a  party  is  sole  owner. 
Thomas  v.  Desmond.  12  How.  Pr.  321;  see,  however,  Holstein  v. 
Rice,  1."  id.  L  Subject  to  mortgage-— That  defendant  took  land  sub- 
ject to  mortgage.  Wormoutli  v.  Ilatdi,  .33  Cal.  121.  Title  to 
money-— Thai  plaintiff  is  entitled  to  the  sum  of  money  demanded. 
Drake  v.  Cockroft,  1  Abb.  Pr.  2iC,.  'Jrust-— Thai  by  tlic  l.iws  of 
the  Btatc  a  tnist  was  <'n'at<'(l.  'Iliroop  v.  llatcli,  .'!  A))li.  I'l'.  2.">. 
Undertake  to  deliver-— "  Tha\  he  did  not,  liy  his  agreement,  under- 
take to  deliver  the  land  from  all  iiuumbrances."  Warner  v. 
Hatfield,  4  Blackf.  .''.94.  I'njust  refusal-Thai  a  refusal  is  unjust, 
is  a  coiichision  of  law.  Re  Prime,  1  Barb.  3.'>2.  Validity.— 'V\\at 
a  note  never  had  any  validity.  Burrall  v.  Bowen,  21  How.  Pr.  378. 
What  is  the  meaning  of  validity  and  effect  of  a  contract?    Latham 


§  18G  ANALYSIS   OF    I'LEADINGS.  152 

§  186.  Defendant's  pretenses,  or  facts  anticipating  a  defense. 
Allogalions  in  a  complaint  as  to  the  del'endaiit's  pretenses  are 
improper,  as  they  are  not  the  I'acls  of  the  {)hiintill'"s  case.^**  So, 
also.  I'aets  antieijiating  a  iU'IVmiso  dught  never  to  bo  averred. 
If  sui'h  an  averment  is  made  in  the  complaint,  the  defendant 
need  not  traverse  it.  What  is  material  in  the  case  may  be  qnite 
immaterial  in  the  i)leading.  The  complainant  shonld  not  erect 
a  structure,  and,  to  show  its  stability,  attempt,  but  fail,  in 
knocking  it  down.  The  plaintilT  may  be  well  aware  of  the  de- 
fense which  will  1)0  interposed,  but  the  defendant  will  be  quite 
as  capable  of  presenting  it  as  the  plaintiff.  The  real  effect  of 
Buch  pleading,  if  allowed,  would  be  to  put  the  opposite  party 
on  the  stand  as  a  witness,  without  being  obliged  to  take  his 
whole  statement  as  true.^^  The  above  is  the  general  rule,  but 
there  are  exceptions;  such  as  where  the  original  indebtedness  is 
counted  on,  and  then  the  defense  of  payment  anticipated  by 
allegations  of  matters  of  fraud  in  answer. ^*^  An  allegation  that 
defendant  was  of  full  age  when  he  executed  the  bond  is  the 
allegation  of  a  fact  in  anticipation  of  a  defense*^     So  in  New 

T.  Westervelt,  20  Barb.  2.")6;  Chapin  v.  Potter,  1  Hi'fT.  3G6.  JVere 
discontinued.—  That  actions  were  discontinued  is  a  conclusion  of 
law.  Hatcli  v.  Peet,  23  Barb.  .583.  IVronghdly  and  unlawfully,  when 
used  in  connection  with  issuable  facts,  are  surplusasj;e,  and  had 
better  be  omitted.  Halleck  v.  Mixer,  16  Cal.  574;  Payne  v.  Tread- 
well,  id.  220;  Lay  v.  Neville,  2.5  id.  545;  People  v.  Supervisors, 
27  id.  055;  Richardson  v.  Smith,  29  id.  529;  Miles  v.  McDorniott,  31 
id.  271;  People  ex  rel.  Haws  v.  Walker,  2  Abb.  Pr.  421;  Fletcher 
V.  Calthrop,  1  New  ^laj;.  Cas.  541;  Ensign  v.  Sherman,  13  How.  Pr. 
37;  Kinsey  v.  Wallace,  30  Cal.  403;  and  Feely  v.  Shirley,  43  id.  309. 
These  words  tender  no  issue,  where  no  facts  are  averred  to  show 
the  acts  complained  of  to  be  wi'ongful  or  imlawful.  Going  v. 
Dinwiddle,  80  Cal.  033;  Reardon  v.  San  Francisco,  00  id.  496;  56 
Am.  Rep.  109. 

38  1  Whitt.  Pr.  .582;  Steph.  PI.  349;  Creen  v.  Palmer.  15  Cal.  414; 
76  Am.  Dec.  492;  Van  Nest  v.  Talmadge.  17  Abb.  Pr.  99;  Hotham 
V.  E.  I.  Conip.,  1  T.  R.  038. 

39  0()nld's  PI.  75;  Canfiold  v.  Tobias,  21  Cal.  349;  Green  v.  Palmer, 
15  id.  414;  70  Am.  Dec.  492;  Kerr  v.  Blodgett,  10  Abb.  Pr.  137; 
Giles  V.  Betz,  15  id.  285;  A'an  Deraark  v.  Tan  Demark. 
13  How.  Pr.  .372;  Woodroof  v.  Howes,  88  Cal.  184;  .Taffe  v.  Lilienthal 
8(;  Cal.  91;  Insurance  Co.  v.  Meeker,  85  N.  Y.  614;  Jones  v.  Ewing, 
22  Minn.  157;  Du  Pont  v.  Beck,  81  Ind.  271. 

40  Bracke  v.  Wilkinson,  13  How.  Pr.  102;  see,  also,  Wade  v. 
Ruslier,  4  Bosw.  .537;  and  Thompson  v.  Minford,  11  How.  Pr.  273. 

41  Walsingham's  Case,  Plow.  504;  Bovy's  Case,  1  Vent.  217; 
Stowell  V.  Zouch,  Plow.  370. 


153  PLEADIXGS    IX    GENERAL,  §§  187,  188 

York  it  has  been  held  that  in  a  complaint  upon  a  cause  of  action 
which  accrued  more  than  six  years  previous  to  the  commence- 
ment of  the  suit,  an  allegation,  inserted  for  the  purpose  of  an- 
ticipating the  defense  c4  the  Statute  of  Limitations,  that  "  the 
defendants  have  not  resided  in  the  state  at  any  time  within  six 
years,"  etc.,  was  irrelevant  and  should  be  stricken  out.*^  But 
it  is  otherwise  in  California.'** 

§  187.  Facts  independent  of  the  cause  of  action.  Facts  inde- 
pendent of  the  cause  of  action  and  proper  to  the  affidavit,  ac- 
companying a  pleading,  as  in  cases  of  arrest,  should  not  be 
alleged.^'*  So,  of  facts  in  relation  to  a  contemporaneous  agree- 
ment in  writing  varying  the  terms  of  a  promissory  note.^'^ 

§  188.  Implications  and  presumptions  of  law.       Where      the 

law  presumes  a  fact,  the  same  need  not  be  stated  in  the  plead- 
ing.^^  Thus  matters  of  which  the  court  takes  judicial  notice 
need  not  be  alleged;*^  or  notice  ex  oificio,  as  of  a  public  statute.'*^ 
But  ordinances  of  a  municipal  corporation  are  not  judicially 
noticed,  and  must  be  alleged.*^     Further  illustrations  of  facts 

•»2  Butler  V.  Mason,  5  Abb.  Tr.  40;  and  see  Minzesheimer  v.  Bruns, 
37  N.  Y.  Supp.  261. 

43  See  Keller  v.  Hicks,  22  Oal.  457;  83  Am.  Dec.  78;  Brennan  v. 
Ford,  46  Cal.  7;  C^ufield  v.  Tobias,  21  id.  350.  A  complaint  to 
rescind  an  unauthorized  contract  in  Avritinj?,  for  the  sale  of  land, 
is  not  Iwiund  to  anticipate  a  possil)le  defense  that  an  oral  contract 
was  partly  perfrtrmed  by  takinj^  possession,  in  connection  with 
payments  on  purchase  money,  and  need  not  negative  the  fact  of 
Bueh  possessiftn.    Salfield   v.  Beclamation  Co.,  94  Cal.  546. 

**  Sellar  v.  Sage,  12  How.  Pr.  531;  13  id.  230;  Frost  v.  M'Garger, 
14  Id.  131:  Secor  v.  Roome.  2  N.  Y.  Code  R.  1;  contra,  Barber  v. 
Hubbard,  3  id.  156. 

45  Snialley  v.  Bristol,   1   Mann.  (Mich.)  153. 

4C1  Chit.  220;  4  M.  &  S.  120;  2  Wlls.  147;  Steph.  on  PI.  352; 
1  Whltt.  501;  rartridfie  v.  Badjifr,  25  Barl).  146;  Tileston  v.  Newell, 
13  Mass.  4^)6;  Dunning  v.  Owen.  14  id.  157;  McOee  v.  Barl)er.  14 
Plek.  212;  .Marsh  v.  Bulteel,  5  Barn.  &  Aid.  507;  Frets  v.  Frets,  1 
Cow.  3.'i5;  Allen  v.  Wntsrm.  ir;  Jdhn.s.  205;  Vymor's  Case,  8  Rep.  81; 
I'.ae.  Abr.,  Blea-s.  1.  7;  2  Sandf.  305;  Sheers  v.  Brooks,  2  H.  Bl.  120; 
Hanford  v.  rainier,  2  Brod.  &  B.  .361;  Wilson  v.  Hobday,  4  M.  &  S. 
125;  Chapman  v.  I'lckersKJll,  2  Wils.  147,  §  185,  ante. 

47  fjoulett   V.  Cowdry,   1    Duer,   130. 

4«1  Sandf.  262:  Steph.  Pi.  345;  Oolet  v.  Cowdrey,  1  Duer,  13&. 

48  Harker  v.  Mayor  f>f  New  York,  17  Wend.  199. 

20 


§  188  ANALYSIS    1)1-    PLEADINGS.  154 

whicli  axe  presumed,  and  consequently  need  not  be  alleged, 
are  given  in  the  note.^*^ 

f*"^  Agcuc\---  That  presentation  of  note  by  a-  bank  was  "  as  agents  " 
for  plaint llY  and  not  as  owners,  is  presumed.  Farmers  »S:  Me- 
chauic'S*  Bank  of  Geuesee  v.  Wadsworth,  24  N.  Y.  547.  Considera- 
tion-—^'^  promissoiy  note  imports  a  consideration,  and  in  an  action 
thereon  none  need  Ih>  allojied.  Allen  v.  Carpenter,  1  AVest  Coast 
Kep.  r>t»8;  Orr  v.  Hopkins,  id.  157.  Death  of  ancestor.—  The  allega- 
tion that  one  is  heir  of  A.  implies  the  death  of  A.,  for  nemo  est 
hoeres  riventis-  Broom's  Leg.  Max.  893.  Though  the  term  "  heir " 
may  denote  heir  apparent.  Lockwood  v.  Jesup,  9  Conn.  272;  Cox 
T.  Beltzhoover,  11  Mo.  1-42.  Delivery  of  a  specialty.— The  delivery  of 
a  specialty,  though  essential  to  its  validity,  need  not  be  stated  in 
a  pleading.  1  Chit.  Vl.  364;  Cabell  v.  Vaughan,  1  Saund.  291; 
Chappell  V.  Bissell,  10  How.  Pr.  274;  12  id.  452;  Prindle  v.  Caru- 
thers,  15  \.  Y.  42.");  Lafayette  Ins.  Co.  v.  Rogers,  30  Barb.  491. 
Incorporation. —  In  New  York,  tliat  a  business  corporation  made 
and  delivered  its  promissory  note,  sutticiently  states  a  valid  con- 
tract. A  legal  consideration  may  be  presumed.  Lindsley  v. 
Simonds,  2  Abb.  rv.  (N.  S.)  69;  Wood  v.  Wellington,  30  N.  Y.  218; 
Phoenix  Bank  of  New  I'ork  v.  Donnell,  41  Barb.  571.  In  writing.— 
Averment  of  acceptance  implies  "  in  writing."  Bank  of  Lowville 
T.  Edwards,  11  How.  Pr.  216.  Jurisdiction.— The  jurisdiction  of  a 
court  of  record  of  a  sister  state  will  be  presumed.  It  is  sufficient 
to  allege  that  judgment  was  diily  recovered.  Halstead  v.  Black, 
17  Abb.  Pr.  227.  So,  also,  of  all  courts,  officers,  and  boards.  Cal. 
Code  Civ.  Pro.,  §  450.  Nonpayment.—  That  defendant  has  not  paid 
is  implied  in  the  allegation  that  tliere  is  due  and  owing,  etc. 
Keteltas  v.  Meyers,  19  N.  Y.  233;  Holeman  v.  DeGray,  6  Abb.  Pr. 
79.  In  the  case  of  Keteltas  v.  Meyers,  supra,  a  copy  of  the  note 
sued  on  was  set  out  in  the  complaint,  and  the  fact  that  the  note  was 
due  appeared  therefrom;  and  the  complaint,  instead  of  alleging  that 
so  much  was  unpaid  thereon,  alleged  that  a  certain  sum  (the  amount 
of  the  note)  was  "  due  and  owing  thereon."  Held,  that  it  was 
equivalent  to  an  averment  that  that  amount  remained  unpaid. 
If,  liowever.  the  com])laint  had  simply  averred  the  making  and 
delivery  of  the  note,  Avithout  stating  when  the  same  matured,  the 
allegation  that  it  was  "  due  "  would  be  a  mere  conclusion  of  law. 
Roberts  v.  Treadwell,  50  Cal.  520.  Official  capacity  of  executor  is 
implied.  Scrantom  v.  Farmers'  «&  Meclianics'  Bank,  24  N.  Y.  424. 
Ownership.-  Possession  of  negotiable  paper  indorsed  in  blank  by 
the  payee  thereof,  is  prima  facie  evidence  of  ownership.  Bedell 
T.  Carll,  33  N.  Y.  581;  Brainerd  v.  New  York  &  Harlem  R.  R.  Co., 
10  Bosw.  332.  Promise- —  In  a  great  many  cases  where  a  legal 
obligation  exists,  the  law  will  imply  a  promise.  This  has  been 
stated  to  be  an  inference  or  conclusion  of  law  from  the  legal  lia- 
bility. Oould's  PI.  .3.30.  But  the  report  in  Kinder  v.  Paris,  2  H. 
Bl.  .'.62,  says,  that  from  the  antecedent  debt  or  duty,  the  law 
presumes  the  defendant  did  in  fact  promise  to  pay,  and  Lord  Holt 


155  PLEADINGS   IX    GENERAL.  §  189 

§  189.  Material  averments.  A  material  allegation  in  a  plead- 
ing is  one  essential  to  the  claim  or  defense,  and  which  could  not 
be  stricken  from  the  pleading  without  leaving  it  insufficient.^^ 
There  is  no  question  ^f  more  importance  to  the  pleader  than 
what  is  and  what  is  not  a  material  allegation;  or,  in  other  words, 
what  is  necessary  to  be  stated  in  a  pleading,  and  what  ought  to 
be  omitted.  In  the  case  of  Green  v.  Palmer,  15  Cal.  414;  76 
Am.  Dec.  492,  this  question  is  elaborately  discussed;  and  the 
true  rule  is  there  laid  down  in  the  clearest  and  most  logical 
manner.^''-     The  following  questions  will  decide  in  most  cases 

is  reported  to  have  said  that  there  was  no  such  thing  as  promise 
in  law.  Parkins  v.  Wollaston,  G  Mod.  131.  So,  a  sale  of  goods  or 
loan  of  money  necessarily  implies  a  promise,  and  a  consideration, 
and  a  mutual  contract.  See  notes  to  Osborne  v.  Rogers,  1  Saund. 
264;  Victor  v.  Davies,  1  M.  &  W.  7.")S;  Emery  v.  Fell,  2  T.  R.  28; 
Glenny  v.  Hitchins,  4  How.  Pr.  98.  And  the  law  makes  no 
distinction  l)etween  an  impliiMl  promise  and  an  express  promise. 
Kinder  v.  Paris,  2  H.  Bl.  ri(J3;  Chit.  Cont.  19.  See  discussion  on 
this  subject  of  promise  in  Hall  v.  Soutlimaj^d,  15  Barb.  34-3(>;  see, 
also,  Cropsey  v.  Sweeney,  27  id.  310;  Farron  v.  Slierwood,  17  X.  Y. 
230;  72  Am.  Dec.  401;  Beriy  v.  Fernandes,  17  Biug.  338;  Durnford 
V.  Messiter.  5  Man.  &  S.  440.  Proportion  of  liability  of  surety-— The 
proportion  that  a  surety  has  to  pay  is  implied.  Van  Demarlc  v. 
Van  Demark,  13  Hoav.  Pr.  372.  Public  officer.—  In  a  suit  by  a 
public  officer  in  his  name  of  office,  his  due  appointment  thereto  is 
implied.  Fowler  v.  Westervelt,  40  Barb.  374.  Statute--  As  to  im- 
plications arising  in  aetions  l)r()uglit  iuid(M-  a  statute,  see  Freeman 
V.  Fulton  Fire  Ins.  Co..  .38  Barb.  247;  Wasliburn  v.  Franklin.  35 
id.  r.99;  7  Abb.  Pr.  8;  Merwin  v.  Hamilton,  0  Duer,  248;  Teel  v. 
Fonda,  4  .Tolins.  .304. 

SI  Cal.  Co<le,  §  40)3;  Oregon  Code,  §  93.  Ordinarily  tlie  time  when 
facts  happen  is  not  material,  and  need  not  be  alleged  in  a  pleading. 
But  the  rule  is  otherwise,  where  the  time  when  a  fact  oceiured 
is  essential  to  the  cause  of  action  or  defense.  Clyde  v.  .Tolinson, 
4  N.  Dak.  02:  Aultman  v.  Siglinger.  2  S.  Dak.  442. 

■'•2  In  Orcen  v.  Palmer,  1.^>  Cal.  414;  70  Am.  Dec.  492:  Field.  C.  J., 
formulated  tlie  following  rules  in  regard  to  i)leadings  under  the 
Code:  "  First  rule.  Faets  oidy  must  be  stated.  Tiiis  means  the 
farts  as  eonfradislinguisJied  from  (lie  law,  from  arguiiienl.  from 
hyjiotheslH,  and  from  evidence  of  tlie  facts.  Tiie  facta  must  l)e  care- 
fully distinguished  from  tlic  c\  idencc  ,,f  ihe  facts.  The  ci-jtrrion  to 
distinguish  tlie  facts  from  tiie  evidence  is  —  Second  rule.  Tliose 
farts,  and  those  alone,  must  l>e  stated  whidi  constitute  tlie  c:iuse  of 
nc-tion.  the  defense  or  the  rejily.  Therefoi-e,  (1)  eacii  party  nuist 
allege  everj*  fact  whicli  lie  is  ref|uired  to  iirove.  and  will  lie  j)re- 
cluded  from  proving  any  fact  )iot  alleged.  The  iilaiutiff.  on  his 
part,  must  allege  all  that  he  will  have  to  iiiove  to  maintain  his  action; 


g  189  ANALYSIS    OF    PLEADINGS.  156 

whetiier  au  allegation  bo  material:  Can  it  be  made  the  sub- 
ject of  a  material  issue F'^^     Or,  if  it  be  denied,  will  the  failure 

the  ilefen'daut.  on  his  inxvi,  all  that  he  must  prove  to  defeat  the 
plaintiff's  title,  after  the  eoniplaiut  Is  admitted  or  proved.  (2)  He 
uuist  allege  nothing  attirniatlvely  which  he  is  not  required  to 
prove.  This  is  sometimes  put  in  the  following  form,  viz.:  '  That 
those  facts,  and  tliose  only,  should  be  stated  which  the  party 
would  be  required  to  prove.'  But  this  is  inaccnrate,  since  negative 
allegari«)ns  are  freiiuentiy  necessaiy,  and  tliey  are  not  to  be  proven. 
The  rnle  applies,  however,  to  all  jilttrmative  allegations,  and,  thus 
applied,  is  universal.  Eveiy  fact  essential  to  the  claim  or  defense 
sliould  be  stated.  If  this  part  of  the  rule  is  violated,  the  adverse 
party  may  demur.  In  the  second  place,  nothing  should  be  stated 
which  is  not  essential  to  the  claim  or  defense;  or,  in  other  words, 
none  but  '  issual)le '  facts  shoidd  be  stated.  If  this  paii:  of  the 
rule  be  violated,  the  advei*se  pai-ty  may  move  to  strike  out  the  un- 
essential parts.  An  unessential,  or  what  is  tlie  same  thing,  an 
immaterial  allegation,  is  one  which  can  be  stricken  from  the  plead- 
ing without  leaving  it  insufficient.,  and,  of  course,  need  not  be 
proved  or  disproved.  Tlie  following  question  ^\ill  determine  in 
everj'  case  whether  an  allegation  be  material:  Can  it  be  made 
the  subject  of  a  material  issue?  In  other  words,  if  denied,  will  the 
failure  to  prove  it  decide  the  case  in  whole  or  in  part?  If  it  will 
not,  then  the  fact  alleged  is  not  material;  it  is  not  one  of  those 
wliich  constitute  the  cause  of  action,  defense  or  reply."  See,  also, 
to  the  same  effect,  Dreux  v.  Domee,  IS  Cal.  88;  Smith  v.  Richmond, 
10  id.  483;  Bowerg  v.  Aul>rey,  22  id,  .509;  Grewell  v.  ^V'alden.  23  id. 
1('9:  O'Connor  v.  Dingley,  26  id.  11;  Johnson  v.  Santa  Clara  Co., 
28  id.  547;  Larco  v.  Casaneuava,  30  id.  ~i(')^>;  Willson  v.  Cleaveland, 
id.  2(K);  Patterson  v.  Keystone  M.  Co.,  id.  3(>4;  Racouillat  v.  Kene, 
32  id.  456;  Jones  v.  Tetaluma  City,  36  id.  233;  Joseph  v.  Holt,  37 
id.  2.55;  Bruck  v.  Tucker,  42  id.  351;  Cline  v.  Cline,  3  Oreg.  359; 
Perkins  v.  Barnes,  3  Nev.  565;  McNabb  v.  Wixom,  7  id.  172; 
Clark  V.  Bates,  1  Dak.  42;  Clay  Co.  v.  Simonsen,  1  id.  403,  430; 
Scott  v.  Itobards,  67  Mo.  289;  Dunn  v.  Reraingtou,  9  Neb.  82; 
Ingle  V.  .lones.  43  Iowa,  286;  I^ouisville,  etc.,  Canal  Co.  v.  Murphy, 
9  Bush,  .522;  Pfiffner  v.  Krapfel,  28  Iowa.  27;  De  Graw  v.  Elmore. 
.50  N.  Y.  1:  Pier  v.  Heinricholfen,  52  Mo.  3,33;  Horn  v.  Ludington, 
28  Wis.  81;  Hill  v.  Ban-ett,  14  B.  Mon.  67;  People  v.  Ryder,  12 
N.  Y.  4.^3;  Rogers  v.  Milwaukee,  13  Wis.  610;  Bird  v.  Mayer,  8 
id.  363;  Groves  v.  Tallman,  8  Nev.  178;  ATills  v.  Wills,  34  Ind.  106; 
Cowin  V.  Toole,  31  Iowa,  513;  Singleton  v.  Scott,  11  id.  589; 
Campbell  v.  Taylor,  2  West  Coast  Rep.  541;  Thomas  v.  Desmond, 
63  Cal.  426;  Peebles  v.  Braswell,  107  N.  C.  68;  Brown  v.  Mining 
C-o.,  32  Kan.  528. 

53  Green  v.  Palmer,  15  Cal.  414;  76  Am.  Dec.  492;  Martin  v. 
Kanouso,  2  Abb.  Pr.  330;  Mussina  v,  Clark,  17  id.  188;  Cahill  v. 
Palmer,  id.  196. 


157  PLEADINGS   IN    GENERAL.  §§  190,  191 

to  prove  it  decide  the  case  in  whole  or  in  part?^^  Such  material 
averment  can  not  be  presumed  from  the  existence  of  other 
facts.'^'^ 

§  190.  Essential  facts  only  are  material.  What  facts  are  es- 
sential is  sometimes  a  question  which  puzzles  the  pleader,  yet  it 
should  not.  The  following  tests  Mill  determine  whether  certain 
allegations  are  unnecessary:  1.  Can  the  allegations  be  stricken 
from  the  pleading  without  leaving  it  insufficient?  2.  Can  it  be 
stricken  from  the  pleading  without  impairing  any  portion  of 
the  cause  of  action  or  defense?  3.  Can  it  be  stricken  from  the 
pleading  without  an  injury  to  the  plaintiff  or  a  benefit  to  the 
defendant,  however  remote  this  injury  or  benefit  may  be?^^ 

The  essential  facts  only  should  be  averred;  for,  should  the 
pleadings  be  so  framed  that  even  the  least  important  essential 
fact  is  left  out,  the  cause  of  action  is  impaired.  What  plaintiff 
ought  to  aver  and  what  he  must  prove  are,  we  repeat,  entirely 
distinct  propositions.  If  the  pleader  were  required  to  aver 
every  fact  necessary  to  prove  his  case,  most  pleadings  would  be 
of  great  length.  The  pleadings  should  l)e  concise  and  to  the 
point.  "  There  never  was  a  greater  slander  upon  the  Code  than 
that  it  permits  long  pleadings."^'^  It  is  only  ultimate  facts  that 
are  to  be  alleged,  and  not  the  facts  which  tend  to  prove  or  es- 
tablish the  existence  of  the  ultimate  facts.  For  example:  Plain- 
tiff sues  for  goods  sold  and  delivered;  defendant  denies  the  sale 
and  delivery.  The  plaintiff  must  then  prove  the  facts  which 
show  the  sale  and  delivery.'*® 

§  191.  Immaterial,  irrelevant  and  rebundant  matter.  Irrele- 
vant, immaterial,  unessential,  redundant,  and  surplus  allegations 

B4  Green  v.  ralmor,  ir>  Cal.  414;  70  Am.  Dec.  402. 

Ml  Van  Santv.  773,  774;  Hall  v.  Soutliiiiayd,  l."5  Barb.  34,  S.^;  Van 
de  Sande  v.  Hall.  13  How.  Pr.  458. 

00  1  Van  Santv.  319,  320;  Whitwell  v.  Thomas,  0  Cal.  499;  Green 
V.  Palmer,  ir>  id.  414;  70  Am.  Deo.  492;  and  oases  cited  in  last  note. 

r.7  (Jrecn  v.  Palmer,  !.'>  Cal.  417:  70  Am.  Deo.  492. 

f>«ritlmafe  facts  only  Bliauld  be  i>leaded,  and  not  the  probative 
f.aots  or  conobislons  of  law.  Oniian  v.  City  of  Pueblo,  8  Col.  292; 
Laliallade  v.  Ovena,  91  Cal.  r,r,',:  Kankin  v.  Newman,  107  Id.  602; 
Meyer  v.  School  District,  4  S.  Dak.  42<>;  Wiibasli,  cic.  R.  II.  Co.  v. 
Johnson,  90  liul.  Ki;  McNfis  v.  Missonri  I'ac  K.  M.  Co.,  22  Mo. 
App.  224;  Nordman  v.  Criii^'iicad,  27  Ark.  309.  In  an  action  of 
claim  and  deliver?',  although  the  fact  that  the  plaintiff  was  the 
owner  and  entitled  to  tlie  jx^ssession  of  the  property  at  a  previous 
date  Is  evidence  from  which  the  ultimate  fact  may  be  deduced  by 


§  101  ANALYSIS    OF    I'LKAl)IN(i8.  158 

sliould  be  omitted  from  a  pleading/'"  Such  allegations  or  de- 
nials present  no  issue.**"  And  if  suck  matter  be  inserted  in  a 
pleading,  it  may  be  stricken  out  on  motion  of  any  person  ag- 
grieved thereby.*'^  Irrelevant  matter  in  a  pleading  is  tkat  wliicli 
has  no  bearing  on  the  subject-matter  of  tke  controversy.**- 
Surplusage  is  matter  altogetker  superfluous  and  useless,  and 
wkick  may  be  rejected  by  tke  court,  and  tke  pleadings  stand  as 
if  it  were  stricken  out  or  kad  never  been  inserted."^  Tkus,  a 
false  construction  in  law  upon  tke  terms  of  a  contract  will  be 
regarded  as  surplusage,  and,  on  motion,  will  be  stricken  out.°* 
Or  superfluous  matter  wken  inserted  by  itself.^^  So,  wken  tke 
name  of  tke  wife  is  improperly  or  unnecessarily  joined  witk  tkat 
of  ker  kusband,  it  may  be  regarded  as  urplusage.***^  So  of  in- 
consistent allegations.*^^  Or  allegations  wkick  are  absurd,  or 
tke  trutk  of  wkick  is  impossible.^  So  of  allegations  wkick  are 
redundant,  altkougk  tke  facts  aven-ed  are  relevant,  as  by  a  need- 
less repetition  even  for  material  averments.*'^ 

a  presumption  of  continuauce  of  the  right,  yet  that  principle  has 
no  application  to  the  statement  of  facts  in  a  pleading,  and  can  not 
dispense  with  the  allegation  of  the  ultimate  fact  of  right  of  posses- 
sion at  the  time  of  the  commencement  of  the  action.  Fredericks 
V.  Tracy,  98  Cal.  G5S. 
50  Green  v.  Palmer,  15  Cal.  414;  76  Am.  Dec.  492. 

60  1  Van  Santv.  7(J;  Maretzeli  v.  Caldwell,  19  Abb.  Pr.  35. 

61  Cal.  Code,  §  453;  Nevada,  §  57;  Idaho,  §  57;  Arizona,  §  57; 
New  Yorlv  Code,  §  160;  Oregon,  §  84;  Larco  v.  Casaneuava,  30  Cal. 
560;  Boles  v.  Cohen,  15  id.  150;  Hampshire  Mfg.  Bank  v.  Billings, 
17  Pick.  87;  Lord  v.  Tyler,  14  id.  156;  Cahill  y.  Palmer,  17  Abb. 
Pr.  196;  Moffatt  v.  Pratt,  12  How.  Pr.  48;  Bangs  y.  Berg,  82  Iowa, 
350;  Smyth  y.  Parsons,  37  Kan.  79;  Sehroeder  y.  Post,  38  N.  Y. 
Supp.  677;  Stove  Co.  v.  Wilkins,  36  id.  977;  72  N.  Y.  St.  Rep.  421. 

62  Fabricotti  y.  Launitz,  1  Code  R.  (N.  S.)  121;  Stafford  v.  Mayor 
of  Albany,  6  Johns.  1;  Van  Rensselaer  y.  Brice,  4  Paige  Ch.  177; 
Perrine  v.  Farr,  2  Zab.  356;  Lee  Bank  y.  Kitching,  11  Abb.  Pr.  435; 
Cahill  y.  Palmer,  17  id.  196. 

63  Gould's  PI.  143;  and  see  Ditch  Co.  v.  Water  Co.,  19  Nev.  60; 
Raili-oad  Co.  v.  Brousard,  69  Tex.  617. 

64  Stoddard  v.  Treadwell,  26  Cal.  294. 

65  1  Van  Santv.  311;  Boles  v.  Cohen,  15  Cal.  150. 

66  Warner  v.   Steamer  "Uncle  Sam,"  9  Cal.  697. 

67  1  Van  Santv.  .3.-3,  .519;  Uridias  v.  Morrill,  25  Cal.  31;  Klink  v. 
Cohen,  13  id.  623. 

68  Sacramento  Co.  y.  Bird,  31  Cal.  66. 

69  1  Chit.  PI.  227;  Dundass  v.  Lord  Weymouth,  Cowp.  665; 
Barstow  v.  Wright,  Dong.  668;  Bowman  y.  Sheldon,  5  Sandf.  660; 
Rost  y.  ITaiTis,  12  Abb.  Pr.  446;  Benedict  v.  Seymour,  6  How.  Pr. 
3(\?.:  Clongh  y.  Miin-ay.  19.  Abb.  Pr.  97. 


159  PLEADIXGS   IX    GENERAL.  §  191 

Any  matter  which  may  tend  to  limit  or  qualify  the  degree  of 
certainty  is  redundant  matter  or  surplusage;  for  example,  mat- 
ter of  mere  evidence,  legal  conclusions,  things  within  judicial 
notice,  matter  coming  nTore  properly  from  the  other  side,  or 
matter  necessarily  implied.""  Though  in  its  more  strict  and 
confined  meaning,  redundancy  imports  matters  wholly  foreign 
and  irrelevant."^^ 

Conclusions  of  law  inserted  in  a  jjleading  may  he  considered 
as  mere  surplusage."^  So  of  evidence  when  inserted  in  a  plead- 
ing.'^^  Or  probative  facts,  such  as  averments  of  deraignment 
of  title.'^*     Or  hypothetical  statements.'^^ 

Matter  inserted  in  a  pleading  obnoxious  from  uncertainty, 
as  where  the  facts  which  constitute  the  cause  of  action  are  not 
stated  clearly,  will  be  considered  as  surplusage.'^*'  So  of  matter 
contained  in  a  pleading,  which  is  frivolous.'^^  Or  allegations 
ambiguous  or  repugnant  to  each  other.'^**  Or  a  commingled 
statement  of  two  causes  of  action  that  may  properly  be  united 
in  one  complaint.'^^  But  stich  pleading  may  be  demurred  to 
for  ambiguity  or  uncertainty.***^  Or  the  names  of  parties  im- 
properly joined,  may  be  stricken  out-^^ 

70  Steph.    n.   423. 

'I  e^tcili.  ri.  422;  Barstow  v.  Wrijjlit,  Douff.  GG7;  1  Saund.  233; 
Yates  V.  Carlislo.  1  Black,  270;  Plowd.  Com.  2.",2;  Lord  v.  Houston. 

11  East.  fi2;  Cobbett  v.  Coohrano,  8  Bins.  1";  Bacon  v.  Ashton, 
5  Dowl.  04;  Palmer  v.  Goodeu,  8  M.  &  W.  800;  Stevens  v.  Bigelow, 
32  Mass.  438;  Hanipsliire  Mfg.  Bank  v.  Billings,  17  Pick.  87; 
Simpson  v.  McArtluir,  IG  Abb.  Pr.  302,  note. 

72Halleck  v.  Mixer,  IG  Cal.  574. 

73  Green  v.  Palmer,  !."»  Cal.  414;  70  Am.  Dec.  402;  Bowen  v. 
Aulirey,  22  Cal.  .'".fU;. 

74  Larco  v.  Casanouava,  30  Cal.  .^GO;  Wilson  v.  Cloaveland,  id.  102. 

75  See  ante;  1  Van  Sanlv.  3r,S;  (iveen  v.  Palmer,  1.'  Cal.  414;  70 
Am.  I)er.  402;  Wies  v.  I'^aniiin}.',  !>  How.  Pr.  ."43;  Brown  v.  Kickman, 

12  Id.  313. 

70  An-iftta  v.  Moriissey.  1  Abb.  Pr.  (  \.  S.)  430. 

77  Sniitli  V.  Countryman,  .30  N.  Y.  O.V>;  Lofkwoo<l  V.  Salhonger, 
18  Abb.  IM-.  130;  Van  Valen  v.  Lapliam,  13  How.  Pi-.  240. 

7**  1  Chit.  PI.  377:  1  Van  Santv.  3."4;  Com.  Dig.  (C.  2.3);  Bar.  Abr. 
PbaH,  I.  4;  Vin.  .\lir.,  ,\batement:  Sililcy  v.  Brown,  4  Pick.  137; 
Wyatt  V.  .\Iand,  1  Salk.  .'!2'1;  Nevill  v.  Soper,  id.  213;  Butt's  Case, 
7  Kep.  2.";  Hutcliiuson  v.  .Jackson.  2  Lut.  1.324;  Hart  v.  Louglield, 
7  Mod.  14H;  P.yass  v.  Wylle.  1   C.,  M.  ^-  B.  (WO. 

70  1   Van  Santv.  .344;  Ilarsen  v.  Bayaud,  5  Duer,  G5G. 

80  Cal.  Code.   8  430. 

81  Yeates  v.  Walker.  1  Duval  (Ky.),  84. 


§   I'll  ANALYSIS   01'    PLEADINGS.  100 

But  a  material  allegation  can  not  be  stricken  out,  because 
the  pleader  also  claims  relief  which  can  not  be  granted.^^  Nor 
where  the  information  required  was  obtainable  by  demand  of 
particulars.*'^  Nor  to  obtain  details  as  to  contents  of  a  lost 
instrument,  of  which  the  nature  and  clVi'i-t  have  been  stated.*** 

If  the  immaterial  matter  consdtuli'  jiart.  of  a  material  aver- 
ment, so  that  the  whole  can  not  be  stricken  out  without  destroy- 
ing the  right  of  action  or  defense  of  the  party,  it  can  not  be 
rejected  as  surplusage,  but  may  be  travecsed  in  the  pleading, 
and  must  be  proved  as  laid,  though  the  averment  be  more  par- 
ticular than  need  be.  The  true  rule  is  that  whenever  the  whole 
allegation  can  be  stricken  out  without  affecting  the  legal  right 
set  up  b}'  the  party,  it  is  impertinent,  and  may  be  rejected  as 
surplusage.*'^  An  entire  pleading  can  not  be  stricken  out  as 
irrelevant  or  redundant.^*^  Allegations  in  a  complaint  touching 
the  execution  and  delivery  of  an  instrument  which  is  unavail- 
ing for  any  purpose  are  mere  surjjlusage.*^^  Conclusions  of  law 
in  a  pleading,  so  far  as  they  are  correct,  are  useless,  and  when 
erroneous  are  worse  than  useless,  and  in  either  case  will  be 
treated  as  not  alleged,  in  considering  objections  to  the  pleading 
raised  Ijy  demurrer.*^**  Matter  of  inducement  leading  up  to  the 
written  contract  upon  which  the  cause  of  action  is  based  does 
not  render  the  complaint  ambiguous,  uncertain,  or  unintel- 
ligible.^^ The  statement  of  a  cause  of  action  in  several  counts 
instead  of  embodying  it  in  one,  does  not  of  itself  render  a  com- 
plaint ambiguous  and  uncertain,  or  open  to  a  general  demurrer.'^'^ 

S2  Woodsate  v.  Fleet,  9  Abb.  Pi*.  222.  A  material  averment  which 
is  defectively  stated  should  not  be  stricken  out.  The  remedy  is  a 
special  demurrer.    Swain  v.  Burnette,  70  Cal.  299. 

83  Corckroft  v.  Atlantic  Mut.  In.s.  Oo.,  9  Bosw.  681. 

84Kellog:g  v.  Baker.  15  Abb.  Pr.  286. 

S5  United  States  v.  Burnham,  1  Mason,  07;  Wyman  v.  Fowler,  3 
McLean,  407. 

86  Benedict  v.  Dake,  6  How.  Tr.  352;  Nichols  v.  .Tones,  id.  355; 
Hull  v.  Smith,  8  id.  281;  Howell  v.  Knickerlx)cker  Life  Ins.  Co., 
24  id.  475;  Blake  v.  Eldred,  18  id.  240.  For  practice  on  remedy 
by  striking  out,  see  Amendments,  vol.  2. 

87  Maprna  Charta,  etc.,  Min.  Co.  v.  Tapscott,  4  Col.  App.  1. 

88  Ohm  V.  San  Francisco,  92  Cal.  437. 

89  Henke  v.  Eureka  Endowment  Ass'n,  100  Cal.  429;  Dunton  v. 
Niles,  95  id.  494.  Where  a  complaint  allepres  facts  which  are 
redundant  the  proper  remedy  is  a  moiion  to  strike  out.  Henke  v. 
Eiireka  Endowment  Ass'n,   100  Cal.  429. 

00  Demartin  v.  Albert,  68  Cal.  277. 


161  PLEADINGS   IX    GENERAL.  §  192 

§  192.  Only  such  facts  as  constitute  a  cause  of  action,  defense 
or  reply,  must  be  stated.  As  has  been  shown  in  preceding  sec- 
tions, only  sucli  essential  facts  as  constitnte  the  cause  of  action, 
the  defense,  or  the  reply,-inust  be  stated  in  the  pleading.  Each 
party  must  allege  wliat  he  is  required  to  prove,  and  he  will  be 
precluded  from  proving  any  fact  essential  to  his  cause  of  ac- 
tion or  defense  not  alleged.^^  In  addition  to  the  foregoing, 
it  is  a  cardinal  rule  of  pleading  under  the  Code,  as  indeed  it 
was  at  the  common  law  and  in  equity,  that  the  allegations  and 
proofs  must  correspond,  and  substantially  conform  to  and  sus- 
tain each  other.  Otherwise  there  would  be  a  variance  which 
would  be  fatal  to  a  recovery.*^^  But  an  allegation  in  a  pleading 
does  not  estop  the  party  pleading  it  from  proving  that  the  alle^ 
gation  is  not  correct,  unless  the  allegation  is  made  an  issuahle 
fact.^^  In  pleading,  it  is  the  ultimate  and  not  the  probative 
facta  which  should  be  averred,  and  it  is  error  in  the  court  to 
exclude  evidence  offered  to  establish  the  probative  facts,  al- 
though they  are  not  averred  in  the  pleading.*^*     For  example: 

91  1  Van  Sanlv.  774;  1  riiit  PI.  214:  Green  v.  Palmer,  W  Cal.  414; 
7«;  Am.  Dec.  4'J2;  Willson  v.  Cleaveland.  30  Cal.  192;  Hicks  v.  Mur- 
ray, 43  id.  522;  Freeman  v.  Fulton  Fire  Ins.  Co.,  38  Barb.  247; 
Ijoleher  v.  Fit,  •^T  id.  152;  Barnes  v.  Quigley,  .59  N.  Y.  265;  Peck 
V.  Root,  ."»  Hun,  547;  Decker  v.  Saltsman,  1  id.  421;  Hicks  v. 
Murray,  43  Cal.  515;  Gates  v.  Lane,  44  id.  392. 

»2  MfKinlny  v.  Moirisli,  21  How.  (U.  S.)  343;  Campbell  v.  The 
•'  Unfle  Sam."  1  McAU.  77;  Kramme  v.  The  "  New  Enjiland," 
Newl».  4H1;  1  Oreenl.  18;  1  Whitt.  Pr.  .575;  Hicks  v.  Mun-ay,  43  Cal. 
515.  In  cases  where  complaint  was  deficient,  see  Cowenhoven  v. 
City  of  Brooklyn,  3.S  BarV).  9;  Van  Zandt  v.  Mayor  of  New  York, 
8  Bosw.  375;  Solms  v.  Lias,  10  Al>b.  Pr.  311;  Bailey  v.  .Johnson,  1 
Daly,  Gl;  Curtiss  v.  Marshall,  8  Bosw.  22;  see  §  205,  post.  In 
cases  where  answer  was  deficient,  see  Raynor  v.  Timerson,  4f> 
Barb.  518;  Allen  v.  Mercantile  Mar.  Ins.  Co.,  46  id.  ('42;  Bnice  v. 
Kelly.  ."iO  N.  Y.  Super.  (7  J.  &-  S)..)  27;  Smith  v.  Smith,  60  N.  Y.  161. 

u'<  Patterson  v.  The  Keystone  Mininj,'  Co.,  30  Cal.  3(>0.  As  to 
wliat  Is  a  variance,  wlien  material,  etc.,  see,  also,  Kna])p  v.  Roche, 
37  N.  Y.  Supr.  ('t.  (5  .1.  <S:  Sp.)  395;  Ilauck  v.  Craiprhead,  4  ILin,  .561; 
Sus8<lorf  V.  Schmidt.  .55  N.  Y.  319;  Boynton  v.  Boynton,  43  How. 
3W);  Beard  v.  Yates,  2  Ilnn.  46<;;  DeKiaw  v.  Elmore,  .50  N.  Y.  1; 
fMidley  V.  Scranton,  .57  id.  424;  Barnrs  v.  Qnijrh'y,  5!t  id.  265;  Cal. 
.de  Civ.  Pro..  S§  469-471;  Farnsw(M-t!i  v.  Hnldernian,  3  West  Coast 
iiep.  342;  State  v.  Roe,  1   Id.  .502;  Orrv.  Hopkins,  id.  1.57. 

04  Crewell  v.  Waiden,  Z^  Cal.  165;  Moore  v.  .Murdock.  26  id.  .514; 
Miles  V.  McDcrmot,  31  id.  271;  Depuy  v.  Williams.  26  id.  313; 
Marshall  v.  Shaft er,  32  id.  17«!;  See  v.  Cox,  16  Mo.  166;  Sanders  v. 
Anderson,  21  id.  402;  §  1;K>.  aute. 

Vol.  1—21 


§  lt)3  ANALYSIS    OV    I'LEADIKOS.  163 

title  of  plaintilV  is  an  ultimalo  fact  in  ejectment,  while  the 
facts  establislied  by  plaint  ill'  going  to  support  such  title  are  pro- 
bative facts."^ 

The  expression  "facts  constituting  a  cause  of  action  "  means 
those  facts  which  the  evidence  upon  the  trial  will  prove,  and 
not  the  evidence  required  to  prove  their  existence.^"  They 
have  been  variously  called  physical  facts,^'^  or  issuable  facts,''* 
or  real,  traversable  facts.^'^  As  before  stated,  facts  and  not  evi- 
ileuce  should  be  alleged.  In  other  words,  it  is  not  necessary 
in  alleging  a  fact  to  state  such  circumstances  as  merely  tend 
to  prove  the  truth  of  the  fact.^^*' 

§  193.  What  should  be  omitted.  Nothing  should  be  alleged 
afhrmatively  which  is  not  required  to  be  proved.^"^  For  it  is 
the  intention  of  tlie  C*ode  to  require  the  pleadings  to  be  so 
framed  as  not  only  to  apprise  the  parties  of  the  facts  to  he 
proved,  but  to  narrow  the  proofs  on  the  trial,^''^  the  rule  being 
that  the  allegations  and  the  proofs  must  correspond.^^^  And 
allegations  merely  formal,  i.  e.,  such  as  require  no  proof  at  the 
trial,  are  unnecessary.^'^'*  And  this  is  the  reason  why  it  is  not 
necessary  to  aver  that  a  note  was  given  for  a  "  valuable  con- 
sideration," or,  in  an  action  for  damages  for  assault  and  battery, 
that  A.  "  wrongfully  and  unlawfully  "  beat  B.,  or,  in  an  action 
for  libel,  for  a  publication  which  is  libelous  per  sc,  that  it  was 
published  "falsely  and  maliciously;"  for  it  was  of  course  false, 
or  it  would  not  be  libelous,  and  malice  will  be  presumed  when 
the  falsehood  is  shown.     But  where  a  consideration  is  not  im- 

95  Marshall  v.   Shafter,  32  Cal.  176. 

96  Wooden  v.  Strew,  10  How.  Pr.  .'lO;  Dows  v.  Hotchkiss,  10  N.  Y. 
Leg.  Obs.  281;  Carter  v.  Koezley,  14  Abb.  Pr.  150;  Cahill  v.  Palmer, 
17  id.  19C. 

97  Lawrence  v.  Wright,  2  Duer,  074 ;  see  I>ralve  v.  Oocliroft,  1  Abb. 
Pr.  203. 

98  Green  v.  Palmer,  15  Cal.  410;  76  Am.  Dec.  492. 

99  Mann  v.  Morewood,  5  Sandf.  557. 

100  steph.  PI.  .342.  An  allegation  by  way  of  recital  is  bad,  and 
objection  thereto  may  be  taken  by  general  demurrer.  Leadville 
Water  Co.  v.  Leadville,  22  Gvd.  297. 

101  Green  v.  Palmer,  15  Cal.  414;  70  Am.  Dec.  492;  Decker  v. 
Mathews,  12  N.  Y.  320;  Bank  of  U.  S.  v.  Smith,  11  Wheat.  171; 
Haskell  v.  Village  of  Penn  Yan,  5  Lans.  43. 

if'2  Piercy  v.  Salnn,  10  Cal.  22;  70  Am.  Dec.  692, 
10."  Maynard  v.  F.  F.  Ins.  Co.,  34  Cal.  48;  91  Am.  Dec.  672. 
104  Ensign   v.   Sherman,  14  How.   Pr.  439;  Biggerstaff  v.   Briggs, 
3  West  Coast  Rep.  353. 


163  PLEADIXGS    IX    GEXEEAL.  §§  194,  195 

plied,  or  a  request  is  essential  to  the  defeiidant's  liability,  it 
must  be  specially  averred  in  the  pleading.^"^ 

The  only  exception  to  this  rule  is  to  negative  a  possible  per- 
formance of  the  obligati©*!  which  is  the  basis  of  the  action,  or 
to  negative  an  inference  from  an  act  which  is  in  itself  indiffer- 
ent.^"" \\hat  is  inserted  in  a  pleading  mvist  be  decisive  of  some 
part  of  the  cause,  one  way  or  the  other. 

§  194.  Mode  of  stating  facts.  The  facts  in  a  pleading  should 
be  stated:  1.  In  their  logical  order;  2.  By  direct  averment; 
3.  In  ordinary  and  concise  language;  4.  With  reasonable  cer- 
tainty. These  several  rules  will  be  considered  in  the  order  in 
which  they  are  mentioned. 

§  195.  Facts  should  be  stated  logically.  By  "  logical  order  " 
is  meant  "  natural  order."'*^"  It  is  laid  down  as  an  essential 
prerequisite  that  logical  order  should  be  observed  in  the  state- 
ment of  facts  in  the  pleading.^°^  The  California  Code  (§  426) 
provides  that  the  complaint  shall  contain  "  a  statement 
of  the  facts  constituting  the  cause  of  action  in  ordinary  and 
concise  language."  It  may  be  observed  that,  in  erecting  a 
building,  the  architect  does  not  commence  at  the  top,  but  at 
the  l)ase,  placing  each  part  of  his  foundation  in  its  proper  posi- 
tion, in  such  a  manner  that  it  may  not  have  to  be  removed  or 
reconstructed.  So,  in  framing  a  ]iloading  it  must  be  remem- 
l»ered  that  we  are  making  a  statement  of  certain  facts  which  we 
relate  in  the  order  of  their  occurrence,  and  the  complete  nar- 
ration mu-st  ]je  made  in  concise  language  and  with  sufficient 
rf-rtainty,  thns  constituting  the  superstructure  of  the  entire 
transaction.  Should  wo  commence  at  the  wrong  end  of  the 
story,  wo  would  Ije  building  without  a  foundation,  and  the  plead- 
ing would  1)0  unintelligiljle;  or  should  we  relate  only  the  latter 
part  of  the  transaction,  however  just  or  plausible  might  be  our 
statements,  still  we  would  not  have  stated  a  cause  oi"  action,  for 

iffiSpoar  V.  Downinp:,  12  Abl>.  Tr.  437:  Orr  v.  IIoi)kiiis,  1  NYest 
f'ofi.st  Iteji.  in?:  .\l(If>n  v.  r'arppntcr,  id.  .'"lOS. 

in<!(;,.p,.„  V.  raluipr.  1.'  r'al.  Ill:  7f,  Am.  I )p<-.  \'.)2;  I'ayne  v.  Tread- 
w.'ll.  K;  fal.  L'44. 

lOTfJrft'n  V.  Palinor.  1."  Tal.    11):  Tf.  Am.  Dor.  402. 

if>«  1  riiit.  ri.  2.".1:  CoulfrH  I'l.  I;  '2  Till.  A:  Shear.  8.  It.  is  said  to 
lie  w  fll  tf)  adlipre  to  tlie  "ordinary  and  concise  lanpiiaRP  "  of  ap- 
provpd  form.'^  'ii  atiitin);  paiisps  <»f  .•id ion  as  wpU  as  Rrnnnds  of 
dpfpnsp,  lest,  in  dpjiartinp  too  far  from  tlie  form,  the  suhstance 
1)8  omitted.     Kohinson.  etc..  Min.  Co.  v.  Johnson,  1.3  Col.  2.").S. 


§  105  ANALYSIS   OF   PLEADINGS.  164 

tluTi'  WduUl  not  be  ;\  i-oiiijiU'U'  aiul  loiiiu'cli'd  statement  of  the 
transa(.'lit)n. 

It  luijs  liOL'u  lu'KI  ilial  t'ac'ls  sliould  l)c  stated  aeeording  to  tlieir 
legal  eH'oot.^*'''  i>iii  authorities  in  states  having  a  Code  are 
quite  as  numerous  tiie  other  way.  in  some  cases  it  has  been 
held  that  I'aets  should  be  stated  as  they  actually  occurred  or 
exist."*'  hi  other  eases  it  is  held  tliat.  facts  may  be  alleged 
either  way.  Thus,  it  seems  that  an  act  done  by  an  agent  may 
be  alleged  as  the  act  of  the  principal,  which  is  the  legal  eifect 
of  the  fact,  or  it  may  be  alleged  as  the  act  of  the  agent,  done 
as  agent  of  the  principal.'" 

It  is  evident,  however,  that  pleading  facts  according  to  their 
legal  effect  is,  in  most  cases,  necessary  to  conciseness,  which  is 
one  of  the  requirements  of  Code  pleading,  and  is  not,  we  think, 
in  conflict  with  any  of  the  requirements  of  the  (!ode.  The  rule, 
it  is  true,  has  more  special  application  to  deeds  and  other  writ- 
ings, but  is  not  restricted  to  them;  but,  under  some  circum- 
stances, may  extend  to  all  matters  and  transactions  which  a 
party  may  be  required  to  allege  in  pleading;  as  whero  a  fact 
necessarily  end)raced  or  implied  certain  other  facts  which  were 
but  the  evidences  of  the  material  fact,  it  is  sufficient  to  allege 
the  legal  or  material  fact.""  This  ride,  indeed,  in  many  cases, 
can  scarcely  be  distinguished  from  that  wdiich  requires  ultimate 
facts  to  be  stated  and  not  the  evidence  of  them.     Take,  for  ex- 

109  Gould's  ri.  14.".:  Rac.  Abr.,  i.  7;  Co.  JAtt.  19.3;  Com.  Dis.  PI.  37; 
2  Saimd.  9(i;  Cowp.  000;  Cro.  Eliz.  .3.".2;  Dous.  007;  2  Sallv.  574;  1  Ld. 
Rayni.  4rK);  I.awos  PI.  02;  1  T.  II.  440;  Stepli.  PL  389;  Boyee  v. 
Brown,  7  Barb.  S.".;  Pattison  v.  Taylor,  1  N.  Y.  Oode  R.  175;  8  Bai-b. 
250;  Dollner  v.  Gibson,  3  N.  Y.  Code  R.  153;  Cosgill  v.  Amer.  Ex. 
Bank,  1  N.  Y.  117;  49  Am.  Dec.  310;  Stewart  v.  Travis,  10  How.  Pr. 
153;  Bennett  v.  .Tiidson,  21  N.  Y.  240;  Barlver  v.  Lade,  4  Mod.  1.50; 
Howell  V.  Richards,  11  East,  633. 

no  Ives  V.  Humphreys,  1  E.  D.  Smith,  190;  Lee  v.  Ainslee,  4  Abb. 
Pr.  4<;3;  Smith  v.  Leland,  2  Duer,  509;  Farren  v.  Sherwood,  17  N.  Y. 
227,  and  many  other  eases. 

111  See  Bennett  v.  .ludson,  21  N.  Y.  240;  Barney  v.  Worthinpton, 
37  id.  110;  Dollnor  v.  Gil)son,  3  Code  R.  153;  Barney  v.  Worthinpton, 
4  Abb.  (N.  S.)  20.5.  Ordinarily,  facts  may  be  pleaded  a.s  they 
aotnally  exist  or  aec-ordinp  to  their  lepcal  effect  at  the  option  of  the 
pleader.  When  pleaded  according  to  the  legal  effect  and  the 
opposite  pai-ty  is  uninformed  as  to  the  proof  he  is  required  to  meet 
at  the  trLol.  as  a  general  mle  his  remedy  is  by  a  demand  for  a  bill 
of  particulars  or  a  motion  to  make  more  definite  and  certain. 
Pulilisliing  Co.  v.  Steamship  Co.,  148  N.  Y.  39. 

112  See  Shaw  v.  Jayne,  4  How.  Pr.  119. 


165  PLEADIXGS    IN    GEXERAL.  §  196 

ample,  an  action  for  personal  injury  resulting  from  negligence; 
it  was  and  still  is  sufficient  for  the  plaintiff  to  allege  in  general 
terms  that  the  injur}-  complained  of  was  occasioned  by  the  care- 
lessness and  negligence  oJ  the  defendant,  without  stating  the 
circumstances,  in  order  to  show  that  it  was  occasioned  by  neg- 
ligence.^^^  But  care  must  be  taken  not  to  confound  pleading- 
facts  according  to  their  legal  effect,  and  pleading  mere  con- 
clusions of  law;  the  one  is  still  a  fact,  while  the  other  is  not. 

The  converse  of  the  rule  above  stated  is  equally  true.-^^*  In 
one  case  the  court  said:  "But  facts  are  not  to  be,  or  at  least 
need  not  be,  separated  entirely  from  the  law  by  the  pleader; 
nor  could  they  be  without  great  and  most  damaging  prolixity. 
In  this,  as  well  as  in  most  things,  theory  and  j)ractice  are  com- 
pelled to  meet  each  other  half  way  for  the  sake  of  attainable 
good.  The  last  analysis  between  fact  and  law  ia  usually  made 
by  the  judge  at  the  trial. "^^^ 

§  196.  Facts  must  be  alleged  by  direct  averment.  It  is  the 
rule,  both  at  coiniiion  law  and  under  rlie  Code,  that  facts  must 
Ite  alleged  by  direct  averment,  and  that  an  averment  is  a  posi- 
tive statement  of  a  fact,  as  opposed  to  argument,  or  infer- 
ence,^^*' or  recital. ^^'^ 

For  instance,  it  is  not  an  averment  that  a  certain  house  in 
San  Francisco,  known  as  the  "  Willows,"  is  a  hotel,  if  it  is  stated 
tlius:  that  "certain  furniture  was  furnished  for  and  used  in 
the  furnishing  of  the  hotel  in  the  city  and  county  of  San  Fran- 

ii'iCliilcs  V.  I)ral<(\  2  Melc.  (Ky.)  140;  Kouiitz  v.  Brown,  16  B. 
Mdii.  r<S,2:  2  Chit.  V\.  (\7,0. 

114  CViclinin  V.  (Joodiiinii,  1-,  Cal.  244:  Slnddnrd  v.  'rrcadwcll.  2n  id. 
2114:  Rcc.  also,  Dainbiiiann  v.  Wliite,  4.S  id.  4."i(i. 

ii'Nudd  v.  'I'liomitson,  :'A  Cal.  47;  and  see  .Newman's  I'l.  &  Tr. 
2f;7. 

ii'il  Cliil.  PI.  ;nJl;  Cowp.  (iS.",;  Bar-.  Abr.  Tleas.  B.  Consult,  as  to 
niannei'  of  statiiij,'  the  cause  of  action,  I'lilTnPi-  v.  Krapfel,  2H 
lowii.  27:  f)vei'toii  V.  Overton.  1.".1  Mo.  ."»!);  Gates  v.  Cray,  C)V>  N. 
C.  442:  Caiuil  (.'o.  V.  Mtiritliy,  !»  I'.usli,  .'"►27;  Snntli  v.  l-'oster.  5 
(Ht-ii.  4-1. 

iiT  Stepli.  r\.  P,f<l;  Bac.  Abr.  Pleas,  B.;  Coidil's  Pi.  o.".;  Co.  Litt.  303; 
1  Cldt.  PI.  2:51;  Cowp.  (.K!:  Sliafer  v.  P.car  Hivei-.  4  Cal.  21)4;  Denver 
V.  P.urton,  2S  id.  .Mil:  StriuKcr  v.  I>avis,  :>A)  id.  31S;  Campbell  v. 
.Tone.s,  3S  id.  .'(i7;  fJates  v.  Lane.  44  id.  .".!i2;  WCsi  v.  American  Exch. 
Bank,  44  Barb.  17.':  'Prnscfttt  v.  I>ole.  7  Mkw.  \'v.  2'J1;  Hobinson  v. 
Cannl  Co.,  2  C.l.  Ap|..  17:  I'.ni-lv<-ti  v.  Cridiili,  ;mi  ("id.  .".."/J;  Byinff- 
ton  v.  Saline  rvuuity,  37  K;iii.  >'>'^\:  Scott  v.  KoluirdH,  (!7  Mn.  289. 


§  197  ANALYSIS    01-    I'LEADIMGS.  166 

Cisco,  known  as  tlu'  'Willows.'"*''"  Justice  Sanderson,  in  the 
case  reicned  to,  disposes  oi'  the  complaint  by  sa.ying:  "  It  was 
not  an  allegation  that  t'he  goods  were  used  in  u  hotel,  or  used 
in  a  buihling  called  the  '  Willows,'  or  that  such  building  was 
a  hotel;  these  facts  were  only  stated  inJ'erentially."  All  essen- 
tial facts  must  be  stated  directly  in  unetpdvocal  language,  and 
not  left  to  be  inferred. ''*-* 

One  of  the  reasons  why  all  essential  facts  should  be  averred 
directly  and  unequivocally  is  obvious  when  we  consider  that  if 
the  language  of  a  pleading  is  doubtful,  it  is  construed  most 
strongly  against  the  pleader.'^*^ 

Especially  must  the  facts  be  positively  alleged  to  entitle  the 
plaintiff  to  an  injunction  founded  on  the  allegations  of  his  com- 
plaint.^-^ l>ut  allegations  on  information  and  belief  are  al- 
lowable;'-^ l)ut  to  authorize  an  injunction,  the  facts  stated  on 
information  or  belief  must  be  sui)ported  by  the  afbdavit  of  one 
or  more  who  can  testify  to  such  facts  from  personal  knowledge. 
And  to  state  the  nature  and  source  of  the  infoniiation  does 
not  vitiate  an  independent  averment  of  such  facts. ^^ 

§   197.   Facts  must  be  alleged  in  ordinary  and  concise  language. 

As  pleading  is  but  a  narration  of  the  events  wdiich  constitute 
tlie  wrong  suifered,  and  a  denial  of  the  same  or  admission 
thereof  by  a  different  statement,  these  statements  mnst  be  made 
in  ordinary  and  concise  language ;^^  that  is,  in  just  such  lan- 
guage as  men  use  in  conveying  the  loiowledge  of  similar  facts 
to  one  another.  The  provision  of  the  Code  in  this  respect  is 
only  declaratory  of  the  common  law.^^^     Under  our  statute, 

lis  Stringer  v.  Davis,  30  Oal.  320. 
110  :SIo()re  V.  Besse,  .30  Cal.  572. 

120  Moore  v.  Besse,  30  Cal.  .jTO;  1  Whitt.  578. 

121  Crocker  v.  Baker,  3  Abb.  Pr.  1S2;  Levy  v.  Lay,  6  id.  90;  Rateau 
v.  Bernard.  12  How.  Pr.  464. 

122  St.  Jolins  V.  Beers,  24  How.  T'r.  377;  Howell  v.  Fraser,  1  N.  Y. 
Code  K.  270. 

12.T  Burrowe  v.  Millbank,  5  Abb.  Pr.  28. 

124  1  Van  Sautv.  3.");  Key  v.  Simpson,  22  How.  (U.  S.)  341;  Green 
V.  Palmer,  l~j  Cal.  414;  De  Witt  v.  Hays,  2  id.  4(t8;  Jones  v.  Steamer 
"  Cortoz,"  17  id.  487:  Smith  v.  Kowe,  4  id.  6;  Coffee  v.  Emiuh,  15 
Col.  184.  Brevity  in  iileadinjrs  is  commendable,  but  It  can  not  be 
allowed  at  tlie  saciifice  of  a  lofi:ical  and  coiDplete  statement  of  the 
uliimatc  facts.     Ddwninjr  v.  Ditch  Co.,  20  Col.  .j46. 

125  Gladwin  v.  Stebbius,  2  Cal.  105. 


167  PLEADINGS   IN    GEXEKAL.  §  198 

there  are  no  words  which  have  one  meaning  in  a  pleading  filed 
in  an  action,  and  another  meaning  when  used  in  common  con- 
versation. It  was  stated  by  Lord  ^Mansfield  that  "  the  sub- 
stantial rules  of  pleading  were  founded  in  strong  sense  and  the 
soundest  and  closest  logic."  In  a  pleading  under  our  statute 
this  remark  is  eminently  applica])le.  If  the  pleader  would  but 
tell  the  story  of  his  client's  wrongs  upon  paper  as  he  would  in 
private  conversation,  very  few  of  his  pleadings  would  be  demur- 
rable. For  instance,  A.  meets  B.  and  says:  *'  C.  is  indebted 
to  me  in  the  sum  of  one  thousand  dollars."  B.  asks:  "  What 
for?"  When  A.  answers:  "For  goods  I  sold  him  in  January 
last;  and  I  have  just  demanded  payment,  and  lie  has  refused 
to  pay  me."  Here  we  have  the  whole  story  of  A.'s  wrongs,  and 
if  he  should  make  a  complaint  spread  over  many  pages,  no 
further  facts  could  be  presented,  because  they  do  not  exist. 

§  198.  Facts  must  be  alleged  with  sufficient  certainty.  Tlie 
matter  pleaded  must  be  clearly  and  distinctly  stated,^^'  so  that 
the  pleadings  may  be  understood  by  the  party  who  is  to  answer 
them.^^  The  certainty  required  in  pleading  relates  chiefly  to 
time,  place,  person  and  subject-matter.^^  Facts  must  be 
stated  with  absolute  definiteness,  and  nothing  should  be  left  for 
inference.^^ 

All  ambiguity  must  be  avoided,  as  well  as  language  of  doubt- 
ful, vague,  or  uncertain  meaning.^-^°  But  mere  vagueness  is 
not  frivolousness,  and  is  to  be  corrected  by  amendment.^^^  Nor, 
as  before  remarked,  should  such  allegations  of  fact  be  stated 
argumenta.tively.^^2  Nor  in  tlie  alternative.^^^  Nor  by  hy- 
pothesis.    Such  statements  are  improper,  for  the  court  has  to 

i-'f'(;oiii(is  ri.  72. 
127  1  ("hit.  ri.  2'.',?,. 
iZRConld's  PI.  77;  Steph.  I'l.  2711. 

lai  Moore  v.  Bessc,  .^0  Cal.  ."70:  People  v.  Supervisors  of  Ulster. 
34  N.  Y.  aW;  Kerffiison  v.  Ilarwood.  7  Cnincli,  408. 

130  1  Chit.  PI.  XW;  Rteph.  PI.  'MH;  Beach  v.  Bay  Rtato  Co.,  10  Abb. 
Pr.  71:  Chri.sty  v.  Scott,  14  How.  (T.  S.)  2.S2;  (Jiron.x.  etc.,  Co.  v. 
White.  21  Oreu.  4.''..";  llo|><'  Miii.  (<..  v.  Brown,  7  Mout.  O.W. 

131  Kelly  V.  Baniett,  10  How.  Pr.  l.'5.">. 

i32Steith.  PI.  17S.  .'{s:'.:  Austin  v.  Parker.  l.'S  Picjc.  222. 

i33Stepli.  PI.  ;'.S0:  Stone  v.  (Jraves,  8  Mo.  14.S;  Siiltcrs  v.  Conin, 
10  Abb.  T*r.  47M;  I.add  v.  Banisby,  10  Orefr.  207;  Sanford  v.  National 
Bank.  OO  Him,  .},S4;  Isonian  v.  McMillan,  3G  S.  C.  28. 


§  199  ANALYSIS    OF    I'l.HA  Dl  NGS.  168 

deal  with  the  facts  in  the  case,  and  not  with  hypothesis."*     But 
denials  nuist  in  niaJiy  cases  be  hypothetical.^"*^ 

If  time  is  material  to  constitute  a  cause  of  action,  it  should 
bo  alleged  with  sullicient  certainty. ^^''*'  The  day  on  which  it 
is  alleged  in  the  pleading  under  a  videlicet,  that  an  act  is  done, 
is  usually,  however,  immaterial.^-"  By  "  not  material  "  in  this 
connection  is  meant  it  may  he  departed  from  in  the  evidence. ^•'*** 
"When  it  is  an  essential  point,  the  place  at  which  the  contract 
■was  made  must  be  alleged.^-'''''  To  make  a  pleading  which  is  bad 
in  these  respects  definite  and  certain,  the  remedy  is  by  motion. ^■**^ 

§  199,  Pleadings,  how  construed.  It  will  be  observed  by 
what  we  have  before  said,  that  it  is  not  claimed  that  our  Code 
more  than  points  out  and  defines  certain  landmarks  by  wliich 
the  pleader  may  be  guided.  The  rules  of  the  common  law  and 
the  decisions  of  the  courts  should  still  be  consulted  when  a 
question  of  the  sufficiency  of  a  pleading  arises.  And  all  ques- 
tions pertaining  to  the  common  rules  of  pleading,  not  ex- 
pressly directed  by  statute,  remai]i  unchanged.  But  the  Code 
of  California  (§  421)  provides:  '*  That  all  forms  of  plead- 
ings in  civil  actions,  and  the  rules  by  which  the  sufficiency  of 
pleadings  is  determined,  shall  he  those  prescribed  in  this 
Code." 

In  the  construction  of  a  pleading  for  the  purpose  of  deter- 
mining its  effect,  the  allegations  shall  be  liberally  construed, 

i34Steph.  PI.  386;  Green  v.  Palmer,  15  Cal.  4li;  Wies  v.  Fanning, 
9  How.  Pr.  543. 

135  Brown  v.  Rycljman,  12  How.  Pr.  313. 

136  People  V.  Ryder,  2  Kern.  (12  N.  Y.)  439.  The  complaint  in  an 
action  for  services  need  not  show  the  time  when  the  services  were 
rendered.  AUen  v.  Haley,  77  Cal.  575.  So,  ordinarily,  the  time 
when  facts  happen  is  not  material,  and  need  not  be  alleged  in  a 
pleading.  But  when  essential  to  tlie  cause  of  action  or  defense, 
the  omission  of  the  time  renders  the  pleading  insufficient  on  de- 
murrer.    Clyde  v.  Johnson,  4  N.  Dak. -92;  see  §  319,  post. 

137  Lester  v.  Jewett,  11  N.  Y.  460;  Lyon  v.  Clark,  8  id.  148;  Dubois 
V.  Beaver,  25  N.  Y.  123;  see  §  189,  ante. 

138  Andrews  v.  Chadbourne,  19  Barb.  147. 

139  Se<'  Thatcher  v.  Mon-is,  11  N.  Y.  440;  also,  Vermilya  v.  Beatty, 
6  Barb.  429;  Beach  v.  Bay  State  Co.,  10  Abb.  Pr.  71. 

140  People  V.  Ryder,  12  N.  Y.  439;  Simmons  v.  Eldridge,  29  How. 
Pr.  309;  Nash  v.  Brown,  18  Law  Jour.  Rep.  (N.  S.)  62;  Payne  v. 
BaDner,  15  id.  227;  Mar.shall  v.  Powell,  S  Law  Times  (Q.  B.),  159; 
and  13  Jurist,  120.  For  remedy  by  motion,  see  vol.  II,  Notices, 
Motions,  and  Orders. 


169  PLEADIXGS   IX    GENERAL.  §  199 

with  a  view  to  substantial  justice  between  the  parties.^"*^  And 
with  greater  liberality  when  parties  go  to  trial  on  an  issue  of 
fact  than  when  tested  on  deuiurrer.^'*^  As  used  in  this  con- 
nection, substantial  justi(7e  means  substantial  legal  justice,  to 
be  ascertained  and  determined  by  fixed  rules  and  positive  stat- 
utes.^*^  That  allegations  should  be  liberally  construed  does  not 
mean  that  the  omission  of  substantial  averments  should  be 
disregarded;^^'*  since  the  law  will  not  assume  anything  in  favor 
of  a  party,  which  he  has  not  averred. ^^^ 

141  Cal.  Code  Civ.  Pro.,  §  452;  N.  Y.  Code  Civ.  Pro.,  §  159;  1  Van 
Santv.  775;  1  Whitt.  Pr.  596;  Allen  v.  Patterson,  7  N.  Y.  470;  ~j~  Am. 
Dec.  542;  Simmons  v.  Sisson,  2G  N.  Y.  2W;  Blackmer  v.  Thomas, 
28  id.  67;  Yertore  v.  Wiswell.  16  How.  Pr.  8;  Marsliall  v.  Sbafter, 
32  Cal.  176:  Ingraham  v.  Lyon,  105  id.  2.>4;  We.ssels  v.  Carr,  38 
X.  Y.  Supp.  600:  Butterwortli  v.  O'Brien.  24  How.  Pr.  438;  Simmons 
v.  Eldridge.  29  id.  309:  Stockwell  v.  Wager,  30  id.  271;  Ford  v. 
Ames,  36  Hun,  571:  Bowo  v.  Wilkins,  105  N.  Y.  328;  Orr  Water 
Ditch  Co.  V.  Reno  Water  Co.,  19  Nev.  60;  Sullivan  v.  Dunphy,  4 
Mont.  499;  but  see  Burke  v.  Thorne,  44  Barb.  363. 

H2  White  V.  Si)€ncer,  14  N.  Y.  247;  St.  John  v.  Northrup,  23  Barb. 
26;  Cady  v.  Allen,  22  id.  394;  Bennett  v.  Judson,  21  N.  Y.  238; 
Stutsman  County  v.  Mansfield,  5  Dak.  78;  or  on  motion:  Wall  v. 
Buffalo  Water  Works,  18  X.  Y.  119;  Lounsbury  v.  Purdy,  id.  515; 
Bank  of  Havana  v.  Magee,  20  id.  S.^S.  In  Farnswortli  v.  Holder- 
man,  3  West  Coast  lU'p.  342,  the  court  thus  stated  this  rule:  "  The 
contract  offered  and  read  in  evidence  by  tlie  plaintiff  was  meagerly 
set  forth  in  the  complaint;  and  it  is  quite  clear  that  imder  the 
common-law  rules  of  pleading  It  could  not  properly  have  been  ad- 
mitted in  evidence;  as  under  that  system,  justice  between  the  parties 
was  often  secondary  to  a  strictly  technical  adherence  to  the  doc- 
trine that  '  the  proofs  must  convspond  with  the  allegations.'  But 
recent  statutes  have  displaced  this  system  of  teclnncalities,  and 
Introduced  more  equitable  rule.s,  re(iuiring  tlie  allegations  of  plead- 
ings to  be  liberally  construed,  with  a  view  to  substantial  justice 
between  the  i»nnles.  It  is  sutlicicut  if  the  complaint  contain,  in 
ordinary  and  coucisi'  language  and  reasonable  certainty,  allega- 
tions of  sncii  constitutive  facts  as  will  eiOitle  the  plaintiff  to  prove 
an<I  maintain  his  case,  and  give  the  defendant  oi)i>ortunity  to  meet 
and  controvert  the  alleged  facts  i-elled  ui)on  by  the  phiintiff.  To 
Ignore  tlil.s  express  command  of  the  statutes  by  an  adherence  to 
the  system  which  they  were  intended  to  abrogate,  would  be  a 
wanton  negh^'t  of  a  plain  rule  <»f  law  and  duty." 

H3  Stevens  v.  Koss.  1   f'al.  95. 

'■♦••  Koenig  v.  Nott.  2  Ilib.  :!'J.":  Si>ear  v.  I)owning,  'M  Barb.  .523; 
12  .\bb.  Pr.  437. 

n'' Crugpr  V.  nti(lsf>n  Kiver  It.  11.  Co..  12  .\.  Y.  201.  The  cliaracter 
of  a  pleading  is  diterinined  by  its  averments,  anil  not  by  the  name 

22 


^   l.)tj;i  ANALYSIS    (»1     I'LEADINGS.  170 

§  199a.  The  same  —  continued.  Under  the  Washington  Code, 
pleadings  ninst  bo  hberally  constrned,  and  it  is  no  longer  the 
rule  that  a  pleading  nuist  be  most  strongly  construed  against 
the  pleailer.  A  suitor  is  not  to  be  turned  out  of  court,  if  by 
nudcing  idl  reasonable  intendments  in  his  favor,  enough  can 
be  seized  hold  of  in  his  pleadings  to  show  that  he  has  rights 
which  ought  to  be  enforced.^-**'  In  Oregon,  a  party's  pleading 
is  to  be  construed  most  strongly  against  liimself,  for  tlie  pur- 
pose of  determining  its  sutliciency.^'*^  In  the  absence  of  a 
special  demurrer,  if  a  complaint  or  any  allegation  of  the  com- 
plaint is  capable  of  dilTerent  constructions.,  that  which  the 
plaintiff  gives  it,  or  which  the  court  finds  necessary  to  support 
the  action  will  be  given,  and  the  pleading  must  be  construed 
for  the  purpose  of  determining  its  eft'ect  with  a  view  to  sulj- 
stantial  justice  between  the  parties.^-*''^  Where  the  language 
of  a  pleading  is  ambiguous,  it  is  held  that  the  pleading  is  to 
be  taken  most  strongly  against  the  pleadcr.i-'''  But  the  pre- 
sumption against  the  pleader  does  not  require  him  to  antici- 
pate matters  of  defense,  or  to  negative  the  existence  of  all  other 
facts  whatsoever.^^^  The  construction  of  the  pleadings  is  the 
duty  of  the  court,  and  it  is  error  to  instruct  the  Jury  in  such 
a  manner  as  to  leave  it  for  them  to  determine  whether  or  not 
the  answer  denies  certain  allegations  of  the  complaint. ^^^  After 
verdict,  when  no  motion  has  been  made  to  make  more  definite 
and  certain,  the  pleadings  will  be  liberally  construed  to  sus- 
tain the  judgment. ^^^ 

given  to  it.  School  Commissioners  v.  Center  Townsliip,  143  Ind. 
391. 

MG  Isaacs  V.  Holland,  4  Wash.  St.  .54;  Cliambers  v.  Hoover,  3 
Wa«h.  Ter.  107;  see,  also,  Cook  v.  Warren,  88  N.  Y.  37;  Crooks  v. 
Finney,  39  Ohio  St.  .57;  Mulock  v.  AVilson,  19  Col.  29G;  Sylvis  v. 
Sylvis.  11  id.  319. 

147  Kohn  V.  Hinshaw,  17  Oreg.  30S;  Pursel  v.  Deal,  Ifi  id.  295; 
to  same  effect,  see  Hays  v.  Steiger,  7(>  Cal.  .555;  Potter  v.  Fowzer, 
78  id.  493;  Holt  v.  Pearson,  12  Utali,  63. 

14X  Ity.'in  V.  .Jacques,  103  Cal.  280;  and  see  Wagoner  v.  Wilson,  108 
Ind.  210;  :McGee  v.  Long,  S3  Ca.  1.56. 

i4t>i>eople  V.  Wong  Wang,  92  Cal.  278;  McKay  v.  McKenna,  173 
Penn.  St.  .5.^1;  and  see  Smith  v.  Buttner,  90  Cal.  9.5. 

iso.iaffe  V.  Lilienthal,  8(5  Cal.  91;  Woodroof  v.  Howes,  88  id.  185. 

151  Taylor  v.  Middleton,  07  Cal.  656. 

ir.2  j(,i,iison  V.  Leouhard,  1  Wash.  St,  564;  Fisk  v.  Henarie,  13 
Oreg.  156. 


171  PLEADIXGS   IX   CtEXEEAL.  §  199a 

Words  used  in  a  pleading  should  ordinarily  be  construed  in 
their  popular  sense.^°^  Various  examples  of  the  meanings 
which  have  been  given  to  certain  words  and  phrases  in  com- 
mon use  in  pleadings  arS* given  in  the  note.^^'* 

153  1  Chit.  238;  Backus  v.  Uichardson,  5  .Tolins.  47(J;  Wood  berry 
V.  Saekrider,  2  Abb.  Pi-.  405;  Mann  v.  More  wood,  5  Saudf.  557; 
Woolnoth  V.  Meadows,  5  East,  4(i3;  Iiol>erts  v.  Camden,  9  id.  93; 
Re-spublica  v.  De  Lougcliauips,  1  Dall.  Ill;  Kue  v.  Mitchell,  2  id. 
59;  Brown  v.  Laniberton,  2  Binney,  37;  Pelton  v.  Ward,  3  Caines, 
76;  City  of  Rock  Island  v.  Cuinely,  120  111.  408.  The  subject  is 
fully  discussed  in  AValton  v.  Singleton,  7  Serg.  &  R.  449. 

^^•^  Acceptance  implies  a  due  acceptance.  Graham  v.  Machado,  6 
Duer,  514;  Bank  of  LowviUe  v.  Edwards,  11  How.  Pr.  216.  Allega- 
tion that  certain  drafts  were  accepted  by  a  cori)oration,  by  their 
treasurer,  includes  an  averment  of  autliority  in  the  treasurer  to 
accept.  Partridge  v.  Badger,  25  Baib.  146.  Agreed-—  That  a  party 
"  agree<l  "  to  do  a  certain  thing  must  be  taken  to  mean  that  he 
agreed  in  a  valid  and  legal  manner,  as  wliere  a  writing  would  be 
necessary  to  constitute  a  valid  agreement,  such  allegation  will  be 
talven  to  mean  that  he  agreed  in  writing.  Jenkinson  v.  City  of 
Vermillion,  3  S.  Dak,  238.  Continuance  of  ozvnership  will  be  pre- 
sumed where  the  allegation  states  ownership  on  a  certain  day.  \'an 
Rensselaer  v.  Bonesteel,  24  Barb.  366.  Conversion  implies  a  wrong- 
ful conversion.  Young  v.  Cooper.  20  Law  Jour.  (Ex.)  136;  6  Ex.  62. 
Delivery-—  Allegations  of  making  a  written  instrument  imply  de- 
liveiy.  1  Chit.  PI.  364;  citing  Peets  v.  Bratt,  G  Barb.  6()2;  Prindle 
V.  Caruthers,  15  N.  Y.  426;  Lafayette  Ins.  Co.  v.  Rogers,  30  Barb. 
401.  Entry  on  lands  means  lawful  entry.  Turner  v.  McCarthj-,  4 
E.  D.  Smith,  248.  Indorsed  means  lawfully  indorsed.  Mechanics' 
Bank  Assn.  v.  Si)ring  Val.  Shot  Co.,  25  Barb.  419;  Price  v.  McClave, 
6  Duer,  544;  Bank  of  Geneva  v.  Gulick,  8  How,  Pr.  51.  And  in- 
cludes delivery.  Bank  of  Lowvillo  v.  Edwards,  11  How.  Pr.  216. 
Lease  in  writing- — A  lease  said  1o  be  in  writing  must  be  taken  U)  be 
a  i-arol  lease.  Vernam  v.  Smith,  15  \.  Y.  332.  And  an  agreement 
for  <iuiet  enjoyment  is  implied  from  its  terms.  Mayor  of  New  York 
V.  .Mabie,  13  N.  Y.  151;  VA  Am.  Dec.  .538;  Tone  v.  Brace.  11  I'aige, 
5(M;.  Negligence—  Negligence  includes  gross  as  well  as  ordiiiiiry 
negligence.  Noltoii  v.  West  K.  U.  Corj)..  15  N.  Y.  450;  Edgerton  v. 
N«'w  York  iSc  liar.  R.  R.  Co.,  35  Barb.  389.  No  award  implies 
ii<»  valid  award.  Dresser  v.  Stanslield,  14  .M.  &  W.  822;  and  "no 
iiieinorlal,"  no  valid  memorial.  Ilicks  v.  Crafknell.  3  id.  77. 
(h'erpaymeni  means  an  overpayment  in  money.  Mann  v.  Morewood, 
.'.  .Sandf.  .557.  Possession  Imi)lie8  legal  itossession.  23  Ind.  .5(8. 
^■igucd  niean.s  made,  when  a])plie4l  to  a  iiromissory  note.  Price  v, 
McClave.  C,  Duer,  .544;  P.ank  of  Geneva  v.  flulick,  8  How.  Pr.  51. 
Subscription  to  stock.— Thnt  the  defendants  su1)scribed  to  so  many 
shares  of  stock  implies  that  they  were  the  owners  of  and  entitled 


§  200  ANALYSIS    OF    I'l. HA  DINGS.  173 

§  200.  The  same  —  verified  pleadings.  A  verified  pleading 
must  be  construed  so  as  to  nialco  all  its  parts  harmonize,  if  pos- 
sible, with  each  other.*^''"*  And  the  entire  pleading  must  be 
considered  together. ^°" 

The  averment  which  bears  most  strongly  against  the  pleader 
will  be  taken  as  true.^^"  But  the  liberal  provisions  of  the  stat- 
ute, in  facilitating  amendments  to  pleadings,  have  somewhat 
moditied  tlie  maxim  that  pleatlings  should  bo  construed  most 
strongly  against  the  pleader,  as  laid  down  by  standard  authors; 
and  which,  subject  to  such  modification,  has  been  declared  as 
still  the  rule  of  construction.^^^ 

It  is  presumed  that  every  person  states  his  case  as  favorably 
to  himself  as  possible.^'"'"*  And  yet  the  language  of  a  pleading 
is  to  have  a  reasonable  intendment  and  construction.^*'^ 

So,  if  a  pleading  has  on  its  face  two  intendments,  it  ought 
to  be  construed  by  this  rule.^*^^  lUit  where  an  expression  is 
capable  of  different  meanings,  that  meaning  should  be  taken 
which   will   support   the   allegation,   and   not   the    one   which 

to  those  sliaif'S.  Oswego  &  Syracuse  Plank  Road  Co.  v.  Rust,  5 
How.  Pr.  390.  Taking  means  an  unlawful  taking.  Childs  v.  Hart, 
7  Barb.  372.  Unlazvful.  ivrongful  are  conclusions  of  law.  Payne  & 
Dewey  v.  Troadwell,  l(i  Cal.  220.  When  used  in  connection  with 
issuable  facts,  though  they  do  not  vitiate  a  pleading,  are  surplusage, 
and  had  better  be  omitted.  Miles  v.  McDermott,  31  Cal.  271;  Hal- 
leck  V.  Mixer,  16  id.  .''>7.^>.  IVriting  obligatory.—  At  common  law,  the 
term  "  writing  obligatory  ''  in  a  pleading  imports  a  sealed  instru- 
ment.    Clark  V.  Phillips,  Hempst.  294. 

155  Ryle  V.  Harrington,  4  Abb.  Pr.  421. 

150  FaiTish  v.  Coon,  40  Cal.  33;  Allemany  v.  Petaluma,  38  id.  553; 
4  East,  .502;  Beach  v.  Berdell,  2  Duer,  327;  Hatch  v.  Peet,  23  Barb. 
575. 

137  Boll  V.  Brown,  22  Cal.  671;  Trisconny  v.  Orr,  49  id.  612. 

158  Dickinson  v.  Maguire,  9  Cal.  40;  Moore  v.  Besse,  .30  id.  570; 
Kingsley  v.  Bill,  9  Mass.  198;  Doane  v.  Badger,  12  id.  69;  Star 
Steamship  Co.  v.  Mitchell,  1  Abb.  Pr.  (N.  S.)  39(>. 

159  1  Chit.  PI.  241;  Co.  Litt.  303;  Fuller  v.  Hampton,  5  Conn.  422. 
The  failure  to  aver  material  facts  in  a  veriaod  complaint  must  be 
construed  as  implying  tliat  they  do  not  exist,  and,  therefore,  could 
not  be  averred  in  a  complaint  imder  oath.  Callahan  v.  Loughran, 
102  Cal.  476. 

160  1  Chit.  PL  2.37;  Com.  Dig.  PL  (C.)  25;  Hastings  v.  Wood,  13 
Johns.  482. 

if;i  T'nited  States  v.  Linn,  1  How.  (U.  S.)  104;  17  Pet.  (U.  S.)  88; 
compare  Kerr  v.  Force,  3  Cranch,  8. 


173  PLEADIXGS    IX   GEXEKAL.  §  200 

would  defeat  it.^^^  And  when  a  word  has  two  meanings  in  law 
differing  in  degree  merely,  it  will  be  understood  in  its  larger 
sense,  unless  it  appears  to  be  used  in  its  narrower  sense. •^''^ 

Doubtful  language  is  ronstrued  most  strongly  against  the 
])leader/*^'*  imlet5s  confessed  to  be  ambiguous,  with  a  request  on 
the  part  of  the  pleader  to  be  allowed  to  amend.^^^  Where  it  is 
:loubtful  on  which  the  pleader  intends  to  rely,  tort  or  contract, 
that  construction  should  prevail  which  is  most  unfavorable  to 
the  pleader.^^ 

This  rule,  however,  does  not  require  such  a  construction  to 
be  given  as  will  make  the  pleading  absurd. ^^^  The  demand  for 
judgment,  and  the  summons,  may  in  such  cases  be  consulted. ^^^ 

Allegations  in  the  present  tense  in  a  verified  pleading  must 
be  deemed  as  relating  to  the  date  of  verification.^®^  If  the 
allegations  of  a  defense  are  pertinent  to  the  controversy,  their 
sufficiency  can  only  be  tested  on  demurrer  or  on  the  trial. ^^'^ 

A  general  allegation,  followed  by  a  specific  one,  is  governed 
by  the  latter.  The  latter  clause  of  the  sentence  explains  and 
restricts  the  former  part;'"^  and  an  averment  of  a  legal  conclu- 
sion at  variance  with  an  admitted  fact  will  be  disregarded. ^'^^ 
And  sucli  averment,  without  any  fact  to  warrant  it,  is  always 
disregarded. 

162  1  Chit.  237;  Vernon  v.  Keyes,  4  Taunt.  492:  Gage  v.  Acton, 
1  Salk.  32r>;  The  King  v.  Sto])hens,  5  East,  244,  257;  12  id.  279; 
Pender  v.  Diclien,  27  Miss.  (5  Cush.)  2.52. 

if!3  ^filler  T.  Miller,  33  Cal.  3.'>3. 

i«4Steph.  PI.  378;  1  Cliit.  237;  Moore  v.  Rcsse,  30  Cal.  570;  Bates 
V.  Kosekrans,  23  How.  Pr.  1)8;  Kidder  v.  Whitlock,  12  id.  208. 

iw  Nevada  &  Saoranienio  County  Canal  Co.  v.  Kidd,  28  Cal.  073; 
Chipnian  v.  Emerie,  5  id.  411;  03  Am.  Dee.  SO. 

i«*i  Kidder  v.  Wliitlock.  12  How.  Pr.  212;  Muii^'er  v.  Hess.  28  Barb. 
7.'.;  see  City  of  Koek  Island  v.  Cuinely,  120  111.  408;  Itandall  v. 
Van  Wagenen,  115  X.  Y.  .527;  12  Am.  St.  Kep.  S2S;  Purcell  v.  Kail- 
rf)ad  Co.,  108  X.  C.  414. 

i«7  1  ciiii.  'S'.l:  .Mai-sliall  v.  Sli;ifter,  32  C:i].  170;  Ivon-.-iine  v.  I.ons, 
H  Id.  4.-|2. 

I'W  Seliar  v.  Sage.  12  Wow.  I'f.  .".:;i:  Kodgers  v.  Kodgers,  11  Barb. 
r.OO;  Chamliers  v.  Lewis,  2  Hilt.  .501. 

icit  Wlieojor  V.  Heermans,  3  Saiidf.  Cli.  :<U7;  Kice  v.  O'Connor,  10 
Aid).  Pr.  ;'.02. 

iT"Can'eiiter  v.  P..  I),  10  .\l.l>.   I'r.  2.5.S. 

1T1  Hateli  V.  Peel.  2.".  I?ail>.  5S4;  Wild  v.  Oregon  Short  Line,  etc., 
P..  K.  Co..  21  Oreg.  1.50;  Indianaiiolis.  etc.,  K.  K.  Co.  v.  .Tolinson.  102 
Fiid.  ."..54. 

172  Jones  V.  I'liocnlx  Bank,  K  N.  V.  L'.''.5;  Kobjn.son  v.  Stewart,  10 
id.  189. 


^,^  \)nl.  "-.H^v*  ANALYSIS    OK    I'LEAOrXOS.  174 

§  201.  Implied  admissions  in  pleadings.  A  failure  to  an- 
swer is  an  admission  of  every  issuable  fact  stated  in  the  com- 
plaint, and  of  those  only.^^""^  Jiut  such  failure  to  answer  does  not 
admit  anylliing  et)ntaiiied  in  the  answer  of  a  codefendant.^'''"' 

g   202.   Admissions  by  dem^urrer  and  answer.  A  demurrer 

admits  the  truth  of  t-uch  facts  as  are  issuable  and  well  pleaded, 
but  not  the  conclusions  drawn  therefrom.  A  demurrer  to  the 
auswer  to  a  j)etition  for  a  writ  of  mandate  is  an  admission  of 
the  matters  averred  in  the  answer.^"*''  Every  material  allegation 
in  the  complaint,  not  controverted  hy  the  answer  thereto,  rshall, 
for  the  purpose  of  the  action,  be  taken  as  true.^"^  The  failure 
to  deny  is  an  admission  of  the  truth  of  such  allegations,  and 
such  admission  is  conclusive.^"  So  when  the  answer  contains 
a  cross-complaint,  the  matters  therein  alleged  will  be  taken 
as  confessed,  if  not  replied  to.^"^^  But  immaterial  allegations 
require  no  denial,  and.  are  not  admitted  hy  such  failure  to  deny 
them.^'^^  Nor  averments  of  mere  evidence.^^*^  The  statement 
of  any  new  matter  in  the  answer,  in  avoidance,  or  constituting 
a  defense  or  counterclaim,  must  on  the  trial  be  deemed  contro- 
verted by  the  opposite  party  ;^^^  as  a  plea  of  infancy,^^^  or  the 
Statute  of  Limitations.^^^  If  a  complaint  is  sworn  to,  a  general 
denial  in  the  an&•^ver  thereto  admits  all  the  material  allegations 
thereof;  the  denial  should  be  specific. ^^"^     And  where  the  admis- 

173  Doll  V.  Good,  38  Cal.  287;  De  Godey  v.  De  Godey,  39  id.  157; 
Brad])ury  v.  Crouise,  4G  id.  287;  Goffman  v.  Brown,  2  "West  Coast 
Rep.  98. 

174  Woodworth  v.  Bellows,  4  How.  Pi-.  24. 

175  Middleton  v.  Low,  30  Cal.  596;  Branham  v.  Mayor  of  San 
Jose,  24  id.  ()f)2.  Whether  anything  more  than  the  exact  allegations 
of  a  complaint  on  demuri-er  are  admitted,  see  Lyon  v.  City  of 
Brooklyn,  28  Barb.  012;  for  fui"ther  authorities,  consult  Demuri'er, 
vol.  2. 

i7e  Cal.  Code  Civ.  Pi-o.,  §  462. 

177  Doll  V.  Good,  38  Cal.  287;  Oampe  v.  Lassen,  67  id.  139;  Pomeroy 
V.  Gregory,  66  id.  572;  Grossini  v.  Perazzo,  66  id.  544;  Merguire  v. 
O' Don n ell,  103  id.  50. 

178  Herald  v.  Smith,  34  Cal.  125. 

i79CanfieId  v.  Tobias,  21  Cal.  349;  Oechs  v.  Cook,  3  Duer,  161. 

180  Racouillat  v.  Rene,  32  Cal.  450. 

181  Cal.  Code  Civ.  Pro.,  §  462;  and  see  In  re  Garcelon,  104  Cal.  570; 
Sterling  v.  Smith.  97  id.  .343,  346. 

182  Hodges  V.  Hunt,  22  Barb.  l.'W. 

i8.3Essel1yn  v.  Weeks,  2  E.  D.  Smith,  116;  12  N.  Y.  635;  see,  also, 
Cutler  V.  Wright.  22  N.  Y.  472;  :^I(Ken/.le  v.  P^arrell,  4  Bosw.  193. 
184  Pico  v.  Colimas,  32  Cal.  578;  Landers  v.  Bolton,  26  id.  393. 


175  PLEADIKG6   IX    GEifERAL.  §§  203,  204 

sions  in  tlie  answer  negative  its  general  denials,  the  latter  may  be 
disregarded.^^^  A  specific  denial  of  one  or  more  allegations  is  an 
admission  of  all  others  well  pleaded. ^*^"  So,  also,  a  denial  of 
value  alleged  is  an  admissJDn  of  any  value  less  than  the  amount 
alleged.^^^  Literal  and  conjunctive  denials  are  bad.  Where 
allegations  are  compound,  and  are  denied  as  a  whole  in  the 
exact  language  of  the  complaint,  the  allegation  will  be  deemed 
admitted. ^^^ 

S  203.  Admissions  by  want  of  verifications.  In  California, 
if  tlie  answer  be  not  verified,  the  genuineness  and  due  execution 
of  the  written  instrument,  of  which  complaint  contains  a  copy, 
shall  be  deemed  admitted,  whether  the  complaint  be  verified  or 
not.^*^^  This  is  confined  to  those  who  are  alleged  to  have  signed 
the  instrument.  An  administrator  need  not  deny  the  signature 
of  the  intestate  under  oath;^**"  and  when  the  defense  to  an  action 
is  founded  on  a  written  instrument  embodied  in  the  answer,  the 
genuineness  and  due  execution  of  the  instrument  shall  be 
deemed  admitted,  unless  an  affidavit  be  filed  denying  the  same.^**^ 
?)Ut  the  due  execution  of  the  instrument  shall  not  be  deemed 
admitted,  unless  the  party  controverting  the  same  is  upon  de- 
mand permitted  to  inspect  the  original.^®^  A  paper  attached 
to  a  complaint  as  an  exhibit,  purporting  to  be  an  admission  of 
agency,  is  not  an  admission,  if  the  answer  denies  the  agency. ^^^ 
Kxhibits  attached  to  an  answer  need  no  further  verification  than 
wliat  arises  from  the  averments  in  the  answer,  that  they  are 
copies. 104 

«  204.  Effect  of  admissions.  No  proof  is  required  of  facts 
aflmitted  or  not  denied,''^-''  except  for  an  amount  of  unliquidated 

isr.  Fremont  v.  Seals,  IS  C^l.  433. 

i^«I»e  Uo  V.  ConU'S,  4  C'al.  117. 

i^TTowdy  V,  Ellis.  22  Cal.  0,-.1. 

i'"<T?lood  V.  Lljrht,  31  Tal.  11.":  Wf>odwortli  v.  Knowlton,  22  id. 
^<^r\■.  HlanUinan  v.  Vallcjo.  1.%  id.  (■..•;S:  Siiiiili  v.  Kiclimond,  id.  r>01 ; 
T»()ll  V.  f'.fxxl.  38  id.  287. 

i^nfal.  r«Kle  fiv.  Pro.,  S  4  17;  Sacraiiiento  Co.  v.  Uird.  31  TaJ.  73; 
r.iiriiMt  V.  Woanis,  33  id.   ICK. 

iitoHcnth  V.  Lent.  1  Cal.  411. 

i»i  Cal.  Co<le,  S  44R. 

102  Id.,  i  449. 

'"•1  Carfleld   v.  Knight's  Foht  A-   Tab.   Mt.  W;Upv  Oo.,   14  Cal.  37. 

in^  Ely  V.  Frisbie.  17  f'al.  2."/). 

if>' Tiiohinine  Itodeniplion  To.  v.  Patterson.  IS  Cal.  410;  Patterson 
V.  Ely.  ID  ill.  2S:  Fanckner  v.  Tfondoiii.  loi  id.  i  fO;  rjndm  v.  Stnn- 


!}  '^05  ANAl.VSIS    OF    I'LKADINGS.  170 

da  mages.  ^""^  On  such  admissions,  the  onus  of  proving  his  affirma- 
tive aJlegatious  will  be  llu'uwn  on  the  dei'endant.^"''  ;:\ji  ad- 
mission in  the  ajiswer  that  defendant  received  money  to 
jilaiutill's  use,  and  reruscd  to  pay  llio  same  on  tlemand,  does  not 
])reclude  evidence  of  })aynient  il  payment  is  set  up  in  the 
aubwer.^^*  13ut  an  adijiission  in  one  plea  does  not  operate  as  an 
achuission  in  respect  to  an  issue  presenteil  ijx  another.^"*^  Where 
there  axe  several  defenses  in  an  answer,  an  admission  made  in 
one  is  not  an  admission  for  all  the  i)urposes  of  the  case.  It  does 
nt>t  destroy  the  effect  of  a  denial  of  tlie  matter  thus  admitted 
in  another  answer.^^  When  an  idtimate  fact  is  admitted,  pro- 
bative facts,  tending  to  establish,  modify,  or  overcome  it  will  not 
be  considered.^^  So  an  admission  of  indebtedness  implies  a 
promise  to  pay.^^^ 

§  205.  Variance  and  defects.  Altliough,  as  heretofore  stated, 
the  rule  is  v/ell  estaljlished  that  the  allegata  and  probata  must 
correspond,  and  that  the  plaintiff  must  prove  his  case  as  alleged 
in  his  complaint,^^'  the  Codes  uniformly  provide  that  an  error 
or  defect  that  does  not  affect  a  substantial  right  shall  be  dis- 
regarded.^* This  provision  of  the  Code  has  been  most  bene- 
ficial in  doing  away  with  the  technicalities  of  the  common  law, 
and  should  be  liberally  construed.^^  And  a  disregard  of  a  vari- 
ance may  be  held  equivalent  to  an  amendment  at  the  trial-^^ 

ley,  92  id.  80;  In  re  Doyle,  73  id.  5M.     A  fact  thus  admitted  can 
not  be  controverted.     Kutcher  v.  Love,  19  Col.  542. 
19«  Stuart  V.  Binsse,  10  Bo.sw.  436. 

197  Thompson  v.  T.e<>,  8  C^al.  275. 

198  McDonald  v.  Davidson,  30  Gal.  174. 
190  Fowler  v.  Davenport,  21  Tex.  626. 

200  Siter  v,  Jewett,  33  Cal.  92. 

201  Mulford  V.  Estudillo.,  32  Cal.  131. 

202  Levinson  v.  Schwartz.  22  Cal.  '229.  The  rule  that  each  party 
to  a  contest  of  the  riirht  to  purchase  state  lands  i.s  an  actor,  and 
nuist  set  forth  in  his  pl('a<linss  and  show  V>y  his  proofs  that  he  has 
strictly  coniplietl  with  the  law,  does  not  change  the  nde  that 
material  allegations  not  denied  must  be  taken  as  true.  Prentice  v. 
Miller.  82  Cal.  .570. 

20.3  Gould's  PI.  IGO;  Stout  v.  Cofhn,  28  Cal.  65;  Hathaway  v.  Ryan, 
3.")  id.  188;  Tomlinson  v.  Monroe,  41  id.  94;  Brewster  v.  Crossland, 
2  Col.  A  pp.  446. 

204  Cal.  Code  Civ.  Pro.,  §  475;  OoJ.  Code  Civ.  Pro.,  §  81;  N.  Y. 
Code  Civ.  Pi-o.,  §  723:  Ores.  Code  Civ.  Pro.,  §  104. 

205  Began  v.  O'Reilly,  32  Cal.  11. 

2fio  >rulliken  v.  TTull,  5  Cal.  245;  Coleman  v.  Playsted,  36  Barb. 
26;  Smith  v.  Roe,  1  West  Coast  Rep.  502. 


177  PLEADIXGS   IN   GENERAL.  §  305 

A  variance  between  the  pleadings  and  proof,  if  it  be  not  a 
material  variance,  that  is,  one  which  has  actually  misled  the 
adverse  party  to  his  prejudice,  shall  not  be  regarded."*^^  But 
where  the  allegations  in  ji  pleading  to  which  the  proof  is  di- 
rected remain  unproved  in  its  entire  scope  and  meaning,  it  ia 
not  a  case  of  variance  to  be  disregarded,  and  an  amendment  will 
not  be  allowed  unless  it  clearly  appear  to  be  in  furtherance  of 
justice  to  allow  it.^®  If  evidence  is  offered  by  the  plaintiff  at 
variance  with  the  allegations  of  the  complaint,  and  the  counsel 
for  the  defense  does  not  object  to  it  at  the  time,  nor  move  to 
strike  it  out  upon  the  ground  of  variance,  this  error  is  waived.^® 
As  illustrations  as  to  what  coDstitutes  a  material  or  immaterial 
departure  between  the  pleadings  and  the  proofs,  it  has  been 
held  that  the  complaint  must  agree  with  the  summons  in  the 
description  of  the  parties.-^*^  On  the  contrary  it  was  held  in 
New  Hampshire,  that  the  description  of  the  defendants  as  part- 
ners under  a  particular  name  or  firm  in  the  writ,  is  not  an  aver- 
ment that  they  promised  by  that  name.  Proof  of  the  promise 
by  another  name  is,  therefore,  not  a  variance.^^^  It  was  held  in 
New  York,  that  a  complaint  setting  forth  a  conversion  by  the 
defendant,  of  money  deposited  with  him,  and  demanding  the 
amount  of  such  money,  is  not  aA^ariance  from  a  summons  for  a 
money  demand  on  contract.^^^  So  it  has  been  held  by  the  Su- 
preme Court  of  the  United  States,  that  a  variance  between  plead- 
ings and  findings  will  not  be  regarded  where  there  is  no  allega- 
tion that  the  findings  were  unwarranted  by  the  proofs.^^^     And 

207  Pal.  fVxle  Civ.  Pro.,  §§  4<irj-471;  Bewail  v.  O'Reilly,  32  Cal.  11: 
PIat(>  V.  Veua,  31  id.  383;  Lettnion  v.  Ritz,  3  Sandf.  734;  Dunu  T. 
Durant,  U  Daly,  .391;  Engel  v.  Hardt,  .'>«  Wis.  456. 

20S  EKerl  v.  Wicker,  10  How.  Vi:  103;  Catlin  v.  Hansen,  1  Duer, 
309. 

2"fi  Boyr-e  V.  California  Stage  Co.,  25  Cal.  471;  Boll  v.  Knowies, 
4r,  id.  U)3;  King  v.  I>e  f*oui-sey.  8  Col.  4(i3;  McDermott  v.  (Jrlmm, 
4  Col.  App.  39;  Sihila  v.  Haliney,  34  Oliio  St..  309;  CiunrainKS  v. 
PetBcli.  41  .Minn.  11.5;  rV)aIe8  v.  First  Nat.  Bank,  91  N.  Y.  31;  Cillles 
V.  Improvement  Co.,  147  id.  42if>.  A  variance  may  l)e  taken  advan- 
tage of  eltlier  by  ol>je<'tlon  to  the  admissibility  of  the  evidence  of 
a  cause  of  art  Ion  not  |)leaded,  or  by  motion  for  nonsuit.  Elmore  v. 
Klmf>re.  114  Cal.  ."»1<J;  and  see  Barn-re  v.  Gonips,  113  id.  97. 

21"  I'.lanchard  v.  Stiait,  K  How.  Pr.  83;  TuttJe  v.  Smith,  6  Abb.  Pr. 
X'.r,;  .Mien  v.  Allen.  14  How.  IV.  248. 

211  Fin.wn  V.  .fewett,  18  .\.  H.  230. 

2i2(;„fT  V.  Kdgerton,  IS  Abb.  I'r.  381. 

213  lujilroad  Co.  v.  Lindsay.  4  Wall.  (U.  S.)  650. 

Vol.  T— 23 


§  •^)05  ANALYSIS    OF    I'LEADINGS.  178 

where,  in  an  action  against  a  common  carrier  for  not  complying 
Willi  a  eontraet  to  carry  or  deliver  a  drai't,  the  complaint  alleged 
iliat  it  was  signed  "'  John  Q.  Jackson,"  the  proof  showed  that  it 
was  signed  "John  Q.  Jackson,  Agent,"  it  was  held,  that  the 
variance  was  iinmaterial.-^'*  A  variance  in  the  evidence  from 
the  pleadings  which  does  not  surprise  or  injure  either  party, 
does  not  all'eet  their  suhstantial  rights.-^^  xVnd  when  a  party 
alleges  that  there  is  a  variance  between  the  allegations  of  a  plead- 
ing and  the  proof,  it  will  be  deemed  immaterial,  and  is  to  be 
disregarded  unless  the  adverse  party  has  been  actually  misled 
to  his  prejudice  by  such  variance,  and  that  fact  must  be  proved 
to  the  satisfaction  of  the  court.^^*^  iVnd  it  is  neither  necessary 
nor  proper  to  anticipate,  in  a  complaint,  circumstances  which 
may  transpire  at  the  trial,  and  no  advantage  can  be  taken  of  a 
variance  between  the  case  made  on  the  trial  and  that  stated  in 
the  complaint,  when  produced  in  this  way.^^'^  Under  a  com- 
plaint charging  the  defendant  as  a  common  carrier,  no  recovery 
can  be  had  upon  proof  of  a  liability  as  a  private  carrier  only.^^^ 
So,  an  alleged  cause  of  action  for  goods  sold  and  delivered  is 
not  sustained  by  proof  of  delivery  of  the  goods  to  the  defendant, 
to  be  sold  on  commission.^^^  A  claim  of  lien  for  materials  fur- 
nished must  state  the  facts  required  by  statute,  but  need  not 
state  what  relation  the  person  to  whom  they  were  furnished 
bore  to  the  owmer,  or  whether  he  had  authority  to  bind  the 

214  Zoijrler  v.  Wells,  Fargo  &  Co.,  28  Cal.  263.  Instances  of  Im- 
material variance.  See  Kennedy  v.  Currie,  3  Wash.  St.  442;  Pencil 
V.  Homes  Ins.  Co.,  id.  485;  Thompson  v.  Crockett,  19  Nev.  242: 
Hitchcock  V.  McElrath,  72  Cal.  56.5;  in  copy  of  complaint;  Fraser 
T.  Oakdale  Lumber,  etc.,  Co.,  73  id.  187;  neglisence;  Ahem  v. 
Oregron  Telephone  Co.,  24  Oreg-.  276.  Where  a  complaint  describes 
a  judgment  as  rendered  for  costs  in  the  sum  of  !piJ).30,  and  the 
judgment  offered  in  evidence  was  rendered  for  $18.30,  the  variance 
is  immaterial.  Ritchie  v.  Carpenter,  2  Wash.  St.  512.  Material 
variance.     See  Barrere  v.  Gomps,  113  Cal.  97. 

215  Salazar  v.  Taylor,  18  Col.  538. 

216  North  Star  Boot  &  Shoe  Co.  v.  Stebbins,  3  S.  DaR.  540;  Stokes 
V.  Brown,  20  Greg.  .530.  When  the  all(\gation  is  unproved,  not  in 
some  particular  or  particulars  only  but  in  its  entire  sco])e  and  mean- 
ing. It  Is  not  deemefl  a  variance,  but  a  failure  of  proof.    Id. 

217  Travelei-s'  Ins.  Co.  v.  Jones,  16  Col.  .515;  Minzesheimer  v.  Bruns, 
,37  N.  Y.  Supp.  261. 

21R  Honeyman  v.  Oregon,  etc.,  R.  R.  Co.,  13  Oreg.  352. 

219  Evans  v.  Bailey,  66  Cal.  112.  But  proof  of  a  sale  and  readiness 
to  deliver  will  sustain  an  allegation  of  sale  and  delivery.  Carter 
V.  Carter,  101  Ind.  450. 


179  PLEADIXUS    IX    GEXEKAL.  §  305 

owner,  or  to  entitle  the  materialman  to  a  lien.  And  where  the 
claim  for  a  lien  states  that  the  material  was  furnished  to  a 
contractor  or  subcontractor,  naming  him,  the  claimant  may 
upon  foreclosure  of  the  lien  aver  facts  showing  that  the  con- 
tract with  the  owner  was  void,  and  that  he  is  deemed  under 
the  statute  to  have  furnished  the  materials  to  the  owner,  and 
there  is  no  material  variance  between  the  claim  of  lien  and  such 
averments.^^  In  an  action  against  a  railroad  company  to  re- 
cover damages  for  injuries  caused  by  fire,  the  complaint  alleged 
that  through  the  negligence  of  the  defendajit  fire  from  its 
locomotives  was  suffered  to  escape  and  did  escape,  and  by  reason 
thereof  came  upon  the  land  of  the  plaintiff,  causing  the  injury 
complained  of,  and  the  evidence  was  that  the  fire  commenced 
on  the  land  of  another,  from  which  it  spread  to  the  land  of  the 
plaintiff,  it  was  held  that  there  was  no  variance.^^  A  judg- 
ment can  not  be  sustained  upon  appeal,  when  the  case  proved 
and  found  is  not  the  case  made  by  the  complaint,  although 
another  good  cause  of  action  may  appear  in  favor  of  the  plain- 
tiff.^^ Further  examples  of  material  and  immaterial  variances 
are  given  in  the  notes.^^ 

220  Lumber  Co.  v.  Oottschalk,  81  Cal.  CAO;  and  see  HaRman  v. 
Williams,  88  id.  14<'.,  variance  between  complaint  and  record. 

-'21  Butcher  v.  \aca  Valley,  etc..  K.  K.  Co.,  (Vi  Cal.  518. 

■-22Biyjin  V.  Tormey.  84  Cal.  12();  and  see  Bender  v.  Bender,  14 
Orejr.  3r>3;  Ja<-kson  v.  Miner,  101  111.  ."K).  Material  variance  between 
summons  and  complaint.  See  St.  Paul  Harvester  Co.  v,  Forbreg, 
2  S.  Dak.  :r>7;  Ilayne.s  v.  McKee,  18  Misc.  (N.  Y.)  361. 

223  Consideration-—  It  is  not  a  variance  if,  upon  tlie  consideration 
state<l  in  the  count,  it  is  proved  that  the  defendant  undertook  to 
<lo  an  act  in  addition  to  that,  the  nonperformance  of  which  is 
stated  in  the  count.  Morrill  v.  Richey.  IS  N.  II.  29.").  A  written 
atrreement  in  this  form:  "Bon-owed  and  receivetl  of  A.,  two  hun- 
dred and  sixty  df)llai-H,  which  I  promis<»  to  pay  on  demnnd,  with 
interest;"  imports  a  consideration  on  its  face;  and  if  the  defendant 
ill  an  action  upon  it  has  infrodiici-d  evidence  teiidiu;,'  to  .show  that 
it  was  piven  without  conHidcnition,  tiie  plaintiff  may  prove 
tliat  it  was  jjiven  in  jiaymciu  <,f  a  debt  of  a  tliird  person, 
although  there  is  no  averment  to  tliat  effect  in  the  declara- 
tion. Plate  V.  Vega,  .'il  Cal.  :iK\:  Cochran  v.  Duty,  8  Allea 
^Mnss.),  324.  A  complaint  alleged  liiat  the  consideration  of  a 
contract  was  .$.''>, ."»f)f);  the  j)roof  was  that  the  consideiiit  ion  was  a 
siirlit  draft,  wliicli  wa.**  pnid.  Held,  no  variance.  Nash  v.  Towne, 
r>  Wall.  tl*.  S.)  r,HU.  0,7'f»i(;/i/.— Plaintiffs  will  not  be  allowed  to 
recover  tipoii  an  imiilie<l  covenant  in  a  lease,  totally  different  from 
the  express  covenant   declared  on,    when   objection   is   .specifically 


§  205  ANAIA'SIS    OF    I'LEADTNOS.  180 

made,  ihousli  not  taken  until  the  ovidouce  is  all  in.  Merritt  v. 
Olosseu.  ;Ui  Vt.  ITli.  Dates.—  So,  wbeu  dales  aiv  iu  (luestiou,  unless 
they  be  the  gist  ot  the  action,  a  vai-iance  will  be  immateiial. 
Zorkowski  v.  Zorkowski,  3  Kobt.  iiVd;  United  Slates  v.  Le  Bai-on, 
•4  Wall.  (V.  S.)  M-2.  AVhon  a  contract  is  allc.ued  to  have  been  made 
on  a  certain  day,  it  is  no  variance  to  offer  iu  evidence  a  written 
contract  which  took  effect  on  a  different  day.  Id.  Time  stated 
in  a  pleading  is  often  not  material,  and  may  be  departed  from  in 
evidence.  Andrews  v.  Ohadbourne,  11)  Bai'b.  147;  Wilier  v.  Bergen- 
thal.  50  Wis.  474;  Banta  v.  Martin,  38  Ohio  St.  534;  but  compare 
Waldeu  v.  Crafts,  2  Abb.  Pr.  301;  see,  also,  People  ex  rel  Kane  v. 
Ryder,  12  N.  Y.  433.  An  averment  in  the  plalutifiTs  statement,  that 
notice  of  nonpayment  was  given  at  a  wrong  date,  is  but  a  defect  iu 
form,  and  the  subject  of  amendment.  It  is  not  uecessaiy  to  aver 
the  precise  date  when  the  uotice  was  given.  And  the  averment  in 
the  statement  not  being  inconsistent  with  the  fact  that  another 
uotice  was  given  at  tlie  proper  time,  if  the  parties  go  to  trial  on 
the  merits,  on  the  pleas  of  payment  and  payment  with  leave,  etc., 
judgment  will  not  be  airested  on  the  ground  of  the  iusutticiency 
of  the  statement  of  uotice  of  nonpayment.  Loose  v.  Loose,  3tj  Penn. 
St.  538.  Deceit.—  A  declaration  in  action  of  tort,  which  alleges  that 
the  plaintiff,  through  his  agent,  procured  the  defendants  to  furnish 
and  deliver  to  him  a  certain  article,  and  that  they  negligently  and 
carelessly  furnished  a  different  article,  and  that  he  sustained  an 
injui-y  by  the  use  of  the  article  furnished,  believing  it  to  be  that 
which  lie  ordered,  is  not  sustained  by  proof  that  the  plaintiff  bought 
the  article  of  a  third  person,  who  obtained  it  of  the  defendants. 
Davidson  v.  Nichols,  8  Allen  (Mass.),  75;  see  Porter  v.  Hermann, 
8  Cal,  010.  Description.—  So  in  a  case  where  the  proof,  among  other 
things,  showed  certain  lands  to  extend  a  certain  distance  from 
the  nortlieasterly  instead  of  tlie  northwesterly  comer  of  the  tract, 
as  alleged  iu  the  complaint.  Tlie  judgment  followed  the  descrip- 
tion in  the  complaint.  Defendant  appealed.  Held,  that  the  vari- 
ance in  the  description  of  the  premises  did  not  prejudice  appellant; 
that  the  (piestion  was  oue  of  identity,  and  tlie  fact  that  the  corner 
of  the  small  tract  was  called  the  northeasterly  instead  of  the  noi-th- 
westerly  corner,  was  itself  insutticient  to  defeat  the  action,  if  the 
other  and  more  definite  marks  of  description  sufficiently  indicated 
and  identified  the  premises.  Paul  v.  Silver,  IG  Cal.  75;  Calderwood 
V.  Brooks,  28  id.  151;  and  see  State  Insurance  Co.  v.  Schreck,  27 
Neb.  527;  20  Am.  St.  Rep.  G9().  Joint  liability.-  Mthough.  the  proof 
may  show  a  joint  liability  of  the  defendant  with  another,  and  thus 
may  constitute  a  variance,  yet  if  the  objection  is  not  taken  in  the 
mode  pf)inted  oiit  l>y  the  Code,  it  is  one  which  the  defendants  shall 
be  deemed  to  have  waived.  Lee  v.  Wilkes,  27  How.  Pr.  330.  An 
action  against  two  or  more  for  a  joint  trespass  can  not  be  sustained 
]ty  evidence  of  acts  committed  by  one  of  them.  Davis  v.  Cassell, 
W  Me.  294.  Nuisance--  A  declaration  charging  that  the  defendant 
dug.  oiH«)ied,  and  made,  is  sustained  by  proof  that  he  formed  it 
partially  by  excavation,  and  partially  by  raising  walls.     Robbins  v. 


181  PLEADIXGS    IX    GEXEKAL.  §  5i05 

Chicago  City.  4  Wall.  (U.  S.)  G57.  Promise-—  If  the  declaration 
alleges  a  siugle  promise  for  the  performance  of  two  ditferent  things, 
founded  upon  an  entire  eonsidei-atiou,  and  the  evidence  shows  two 
promises,  at  different  tinies^j^upou  distinct  considerations,  that  is  a 
fatal  variance.  Hart  v.  Chosley,  18  N.  H.  373.  Where  the  com- 
plaint is  based  upon  an  implied  promise  to  pay  money  paid  out 
by  the  plaintiff  for  the  defendant's  benefit,  proof  showing  an  express 
promise  to  repay  is  an  immaterial  variance.  Ashton  v.  Shepherd, 
120  Ind.  69.  Promissory  note-—  It  is  held  in  ^Massachusetts,  that  a 
declaration  uix)n  an  agreement  to  discharge  tlie  plaintiff  from  all 
liabilities,  on  account  of  certain  i)urchases,  as  one  of  a  firm  recently 
dissolved,  which  alleges  that  a.  certain  note  was  due  from  the  firm 
at  the  time  when  the  agreement  was  made,  is  not  sustained  by 
proof  that  such  a  note  was  afterwards  given  for  a  liability  of  the 
linn:  but  an  amendment  would  be  allowed  on  terms.  Nijchols  v. 
I'rince,  8  Allen  (Mass.),  40t;  see,  also,  Luna  v.  Mohr,  1  West  Coast 
Kep.  f)73:  OiT  v.  Hopkins,  id.  157.  Relief  — The  complaint  should 
agree  with  the  summons  as  to  the  amount  claimed.  .Johnson  v. 
Paul,  14  How.  Pr.  4r>4.  A  departure  of  the  complaint  from  the 
summons,  in  resi>€Ct  to  the  form  of  relief,  is  not  groxmd  for  revers- 
ing the  judgment  on  appeal.  If  necessaiy  to  sustain  the  judgment, 
tlie  summons  may  be  amended  on  app<'al  froMi  the  judgment,  so  as 
to  conform  to  the  fact  proved.  Willett  v.  Stewart.  43  Barb.  98. 
But,  in  most  states,  it  seems  an  appearance  waives  all  errors  of 
service,  or  form  of  summons.  Statement  of  cause  of  action-— The 
complaint  must  agree  with  the  summons  in  the  statement  of  the 
cause  of  action.  Kidder  v.  Whitlock,  12  How.  Pr.  208:  Boington 
V.  Lapliam,  14  id.  :',W:  Shafer  v.  Humphrey,  ir>  id.  564; 
Campliell  v.  Wright,  21  id.  13.  But  if  the  complaint  set  forth  a 
substantial  cause  of  action,  and  tlie  defect  be  one  tliat  was  amend- 
able, it  is  cured  by  verdict.  Kol)inson  v.  English,  34  I'enn.  St.  3l^4; 
fJiirland  v.  Davis,  4  How.  (U.  S.)  131.  If  the  cause  of  action  or 
defense  l>e  substantially  proved,  the  failure  to  i»rove  certain  allega- 
tions precisely  as  laid,  is  an  immaterial  variance  which  will  be 
totally  di8reganle<l.  Union  India  Rubber  Co.  v.  Tomlinson,  1  Smith, 
Com.  PI.  U.  3(^4;  Lettman  v.  Uitz,  3  Saiidf.  7;U.  Wliere  the  gravamen 
of  an  action  is  fraud,  and  the  i)laintiff  fails  to  eslal>lisli  the  fraud, 
he  can  not  maintain  tlie  action  on  tlie  tlieory  tiiat  a  lialiility  foinided 
on  contract  was  di.sclosed  by  the  evidence.  People  v.  Deiinison, 
84  .\.  y.  272.  So,  genei-aily.  it  Is  error  to  allow  a  plaintitT  to  amend, 
changing  the  i)i-oceeding  from  an  action  ex  delicto  to  one  ex  contractu. 
Ha«'kett  v.  Bank  of  California.  ."7  Cal.  WWu.  Tlie  plaintiff  must  re- 
cover, If  at  all,  n|)0u  the  theory  declared  on.  Peay  v.  Salt  Lake 
City.  11  Utah,  331. 


CHAPTER  II. 

rOEMAL    PAKTS    OF    PLEADINGS. 

§  206.  The  formal  parts  of  pleadings  consist  of  the  caption, 
commencement,  prayer,  verification,  and  subscription.  Tlic 
caption  consists  of:  1.  The  name  of  tlie  state  and  county  in 
which  the  action  is  brouglit;  2.  The  name  of  the  court,  and, 
3.  The  names  of  the  i)arties,  plaintilf  and  defendant.^  In  the 
forms  throughout  tliis  work,  the  caption  will  be  indicated  by 
the  word  "  Title,"  which  will  be  understood  to  include  both 
the  venue  of  the  action  and  the  names  of  the  parties. 

§   207.   Foi-mal  parts  of  complaint  —  title  of  cause. 

Form  No.  25. 

State  of  Califorma,  )   j^^  ^^^  ^^  ^,^^^^2 

City  and  County  of ^ 


Andrew  Black,  Plaintiff, 

against 
Cliarles    Dean,    Defendant. 


§  208.  The  same.  The  first  subdivision  of  the  complaint 
is  an  essential  part  thereof,  and  constitutes  the  title  of  the  ac'- 
tion.  This  embraces  the  name  of  the  state  and  county  or  venue 
of  the  action,  the  name  of  the  court  in  which  the  action  is  to 
be  tried,  and  the  names  of  the  parties  to  the  action.^  An  omis- 
sion to  state  either  of  these  is  an  irregularity*  which  may  cause 
the  complaint  to  be  set  aside  or  action  dismissed  on  motion.^ 

1 1  Chit.  PI.  201,  .f>27,  .'.28:  1  Aroh.  72,  lOS;  Stepli.  PI.  440;  Topping 
V.  Fuge,  1  Marsli.  .341 ;  N.  Y.  Code  Civ.  Pro.,  §  481. 

2  Or,   in    the   Puporior  Coiu't,    in   and   for  the   county   of    , 

State  of  

3  See  Cal.  Code  Civ.  Pro.,  §  420;  Eno  v.  Woodworth,  4  N.  Y.  253. 

4  1  Van  Santv.  2(\?,. 

B  Williams  v.  "SVilldnson,  1  Code  R.  20. 


183  FORMAL    PARTS    OF    PLEADINGS.  §§  209-211 

The  California  Code  of  Civil  Procedure  (§  426)  provides^ 
that  the  complaint  must  contain: 

1.  The  title  of  the  action,  the  name  of  the  court  and  county 
in  which  the  action  is  brought,  and  the  names  of  the  parties  to 
the  action. 

2.  A  statement  of  the  facts  constituting  the  cause  of  action, 
in  ordinary  and  concise  language. 

3.  A  demand  of  the  relief  which  the  plaintiff  claims.  If  the 
recovery  of  money  or  damages  be  demanded,  the  amount 
thereof  must  be  stated. 

§  209.  Name  of  county.  Xaming  the  county  in  the  title  of 
the  cause,  as  above,  is  a  sufficient  designation  of  the  county 
in  which  the  plaintiff  desires  the  trial  to  be  had.^ 

§  210.  Name  of  court.  Every  complaint  shall  be  entitled  in 
the  proper  court.^  If  a  suit  be  brought  in  a  local  court,  the  full 
title  of  the  court  should  He  given,  e.  g.:  "The  City  Court  of 
Brooklyn."  But  where  the  summons  and  complaint  are  served 
together,  its  omission  from  the  complaint  is  a  technical  irregu- 
larity which  can  not  injure  the  defendant.^  But  if  neither 
the  summons  nor  complaint  names  any  court,  no  cognizance  of 
the  action  need  be  taken. ^° 

§  211.  Name  of  parties.  The  law  knows  only  one  Christian 
name,  and  all  intervening  initials  are  no  part  of  the  name.^^ 

«Cal.  Code  Civ.  Pro..  §  426;  compare  X.  Y.  Code  Civ.  Pro.,  §  481; 
lud.  Code  Civ.  Pro.,  §  341;  Mo.  P.ev.  Stats..  §  2039. 

7  1  Chit.  PL  260;  Swan's  PL  141;  Williams'  PL  97;  Tidd's  Pr.  434; 
Sleph.  PL  280;  Tappau  v.  Powers,  2  Hall,  301;  Slate  v.  Post,  9  Johns. 
81;  Capp  V.  Oilman,  2  Blackf.  45;  Davison  v.  Powell,  13  How.  Pr. 
287;  Mt'Kenna  v.  Fisk,  1  How.  (V.  S.)  211:  Loohr  v.  Latham,  15  Cal. 
418;  and  see  Hughes  v.  Windpfennij;-,  10  Ind.  App.  122;  DoUman 
V,  Munson.  90  Mo.  85. 

8  Cal.  Code  Civ.  Pro.,  §  420;  see  Codes  <>f  Oregon,  Nevada,  and 
Arizona;  1  Chit.  2(53:  Tidd's  Pr.  43:  1  Van  Santv.  202;  Kipplin:,'  v. 
Watts,  0  Lej?.  Obs.  80. 

0  See  Van  Naniee  v.  Peojjlo,  9  How.  Pr.  198;  cited  in  Van  Benthuy- 
Bcn  V.  Stevens,  14  id.  70;  and  see  Robinson  v.  Peiii,  etc..  Wheel  Co., 
1  OkL  14/);  McLeran  v.  Morjran.  27  Ark.  148. 

If  Ward  V.  Slrin;;liam,  1  Code  li.  118.  The  above  autliorities  have 
special  reference  to  the  New  York  iiractiee,  whioli  in  service  of 
summons  nntl  eommencement  of  aetions  differs  from  tlie  practice 
of  California.  It  is  nevei-theless  authority  upon  tlie  general  proposi- 
tions.    See,  also,  rjarrotson  v.  TTays,  70  Iowa,  19. 

11  People  V.  Cook,  14  Parb.  201.  Tliat  the  law  recognizes  but  one 
Christian  name  was  held  in  the  case  of  Garwood  v.  Hastings.  38 
Cal.  210. 


§  '01*^  ANALYSIS    OF    I'LKAUIN'GS.  184 

It  t^eoiiis  tluit  llio  word  •■junior"  is  no  part  of  a  name.-'^  Nor 
tlio  word  "  senior."  These  are  mere  unnecessary  additions, 
and  should  not  be  inserted  in  the  coniphiint.  Yet  we  do  not 
see  wliy  tlu'  terms  "junior"  or  '"senior"  may  not  be  properly 
used  in  a  complaint  for  the  purpose  of  more  clearly  identifying 
the  person. 

The  caption  should  contain  the  nanu>s  ol'  all  the  parties, 
plaintiff  and  defendant. ^^  The  rule  is  that  the  names  of  the 
parties  must  be  fully  set  forth  and  be  properly  designated,  the 
complaining  party  as  plaintiff,  and  the  adverse  party  as  defend- 
ant.^"* If,  however,  some  are  named  in  the  title,  and  all  are 
correctly  named  in  the  body  of  the  complaint,  it  will  be  suffi- 
cient.^^ ]iut  being  once  stated,  it  is  suiTicient  afterwards  to 
designate  them  as  "the  plaintid'"  and  "  defendant."^*^  And 
this  rule  applies  when  plaintift  sues  in  an  official  character.^^ 
And  if  they  sue  in  an  official  capacity,  it  is  usual  and  proper 
that  their  character  should  be  indicated. ^^ 

§  212.  The  same  —  mistake  in.  Though  the  names  of  tllO 
parties  must  be  correctly  stated,  yet  a  mistake  in  the  name  even 
of  the  plaintiff  is  not  fatal,  but  may  be  corrected  at  any  time.^** 

la  People  V.  Cook,  14  Barb.  2G1. 

13  Cal.  Code  Civ.  Pro.,  §  42G. 

14  Ifl.,  §  308.  In  all  actions  and  proceedings  demanding  relief, 
the  names  of  all  the  pai-ties  thereto  should  be  properly  set  forth  in 
the  summons  and  pleadings.  A  general  designation  of  them  as 
"  the  heirs  of  M.  C,"  is  iiTegular  and  will  not  be  tolerated.  Kerlec 
V.  Corpening,  97  X.  O.  330. 

15  Hill  y.  Thacter,  2  Code  R.  3;  3  How.  Tr.  407;  Collins  v.  Lightle, 
no  Ark.  97.  A  party  may  be  described  by  a  known  and  accepted 
abl)reviation  of  his  Christian  name.  Kemp  v.  McCormick,  1  Mont. 
420:  and  see  Mansfield  v.  Sliipp,  128  Ind.  5.5.  Designation  of  parties 
by  the  initials  of  their  Christian  names  —  sntFicieney  of.  See  Per- 
kins v.  McDowell,  3  Wyo.  328;  Keuyon  v.  Semon,  43  Minn.  180; 
Zwickey  v.  Haney,  63  Wis.  464;  Churchill  v.  Bielstein,  (Tex.)  29 
S.  W.  Rep.  392;  State  v.  Higgins,  (Minn.)  61  N.  W.  Rep.  816. 

1^  Davison  v.  Savage,  6  Taunt.  121;  Stephenson  v.  Hunter,  id. 
406;  Stanley  v.  Chappell.  8  Cow.  235. 

1"  Stanley  v.  Chappell,  8  Cow.  235;  Ketchnm  v.  Morrell,  2  N.  Y. 
Leg.  01)s.  ."8;  but  comi)are  Christopher  v.  Stockholm,  5  Wend.  36. 

i«IIill  V.  Thacter,  2  Code  R.  3;  3  How.  Pr.  4^)7;  Berolzheimer  v. 
Strauss,  7  Civ.  Pro.  (N.  Y.)  225;  Morrell  v.  IMorgan,  65  Cal.  38; 
Sweeney  v.  Stanford.  67  id.  635;  More  v.  Calkins,  85  id.  177. 

19  Bai-nes  v.  Perine,  9  Barb.  202;  Bank  of  Havana  v.  Magee,  20 
X.  Y.  .3!')6:  Elliot  v.  Hart.  7  How.  Pr.  25;  cited  in  Dole  v.  Manley, 
11  id.  138;  Farnham  v,  Hildreth,  32  Barb.  277;  Traver  v.  Railway 


185  FORMAL   PARTS    OF    PLEADINGS.  §§  213-215 

§  213.  Place  of  trial.  The  complaint  is  irregular  unless  it 
states  the  place  of  trial.^°  And  in  such  case  it  must  be 
amended  or  stricken  out.-^  It  can  not  be  cured  by  reference 
to  the  summons.^  It  may  be  amended,  but  only  on  payment 
of  defendant's  costs.^ 

§  214.  Heal  party.  The  complaint  shall  contain  the  name 
of  the  real  party  in  interest.^  The  term  "  parties  "  includes  all 
who  are  directly  interested  in  the  subject-matter  of  the  action, 
having  a  right  to  make  defense,  control  proceedings,  examine 
and  cross-examine  witnesses,  and  appeal  from  the  judgment.^ 

§  215.  Titles  to  be  avoided.  In  designating  the  parties  to 
the  action,  except  where  suit  is  brought  in  an  official  or  repre- 
sentative capacity,  no  title  or  other  appellation  is  necessary. 
If  inserted,  it  will  be  treated  as  mere  surplusage.^*' 

Co.,  6  Abb.  Pr.  (X.  S.)  4().  A  mistake  iu  the  name  of  a  party  does 
not  afEe<'t  the  pleading  or  the  merits  of  the  action.  The  mistake 
can  be  coiTected  by  motion  to  correct,  or  by  the  court  of  its  own 
motion.     Beavers  v.  Bawcum,  3S  Ark.  722. 

20  1  Van  Santv.  Eq.  Pv.  20.3;  Williams  v.  Wilkinson,  1  Code  R. 
(X.  S.)  20;  Hall  v.  HnntJey,  id.  21. 

21  Merrill  v.  Grinnell,  10  How.  Pr.  31;  Hotchkiss  v.  Crocker,  15  id. 
330;  Davison  v.  Powell,  13  id.  288. 

22McKenna  v.  Fisk.  1  How.  (U.  S.)  IMl. 

23  Hall  V.  Huntley,  1  Code  R.  21.  The  authorities  apply  more 
particularly  to  the  practice  in  Xew  York,  though  they  are  ap- 
plieable  in  California.  See  Cal.  Code  Civ.  Pro.,  §  30(J;  also,  Place 
of  Trial,  ante- 

21  Cal.  Ccxh'  Civ.  Pn>.,  S  I'.OT;  1  \aii  Santv.  Eq.  Pr.  72;  see  aute. 
Parties. 

2.'>  Robbius  V.  Ciiicago  City,  4  Wall.  (P.  S.)  (;.">7.  For  a  fiu-ther 
definition,  see  Giraud  v.  Stagg,  4  E.  D.  Smith,  27. 

2«Shelden  v.  Hoy,  11  How.  Pr.  l.">;  Root  v.  Piioe.  22  id.  372; 
P.utterfield  v.  Maeoiiibcr,  id.  1."i(».  When  the  complaint  shows  a 
cause  of  action  in  favor  of  the  plaintiff,  not  iu  his  representative 
but  In  Ids  individual  charac-ter.  the  drseriptive  w<irds  may  be  re- 
jected, leaving  tlie  action  to  stand  as  one  in  the  individual  cajiacity 
of  the  plaintiff.  Litclitidd  v.  Flint.  104  \.  Y.  r>43;  Thompson  v. 
Whltmarsh.  100  Id.  .",.-,.  Tlie  fact  tjiat  the  Avords  "  dejiuty 
sheriff"  follow  tlic  defeiidant's  name  iu  the  caption  of  tlie  com- 
plaint, floes  not  make  the  action  one  against  the  defendant  as 
deputy  shcrirr.  'ilie  word  "as"  not  preceding  sucli  designation, 
the  presumption  is  that  he  Is  sued  as  an  individual,  and  the  words 
"  deputy  slieriff  "  are  merely  dcscriptio  pcrsonae.  Grelg  v.  Clement, 
20  Col.  1G7. 

24 


^i^vMll-'JlS  AXAi-vsis  01'  ri,i:Ai)iNGS.  18(i 

§  216.  Venue,  how  laid.  As  a  venue  is  technically  necessary 
to  every  traversable  iael,  when  it  is  once  properly  laid,  all 
matters  following  refer  to  it.^^  It  has  been  held,  however,  that 
a  venue  laid  in  the  body  of  the  coni})laint  is  sulhcient.^  The 
proper  mode  in  all  eases  will  be  ti)  lay  the  venue  in  the  title. 

i   217.   Title  of  cause  where  some  of  the  parties  are  unknown. 

Form  No.   26. 
[State,  County,  and  Coukt.] 


Andrew  Black,   Tlaintiff, 

against 

Charles     Dean,     John     Doe,     and 

Richard   Koe,   Defendants. 


§  218.  Parties  known  and  unknown.  In  certain  cases  the 
statute  authorizes  the  plaintitl'  to  proceed  against  parties  some 
of  whom  are  known  and  others  unknown,  giving  the  true  names 
of  such  as  are  known,  and  designating  the  others  by  fictitious' 
names,  stating  in  the  body  of  the  complaint  the  reason,  that 
"their  true  names  are  unknown." 

Thus  if  the  plaintiff  should  he  ignorant  of  the  name  of  the 
adverse  party  he  may  designate  him  by  any  name,  and  amend, 
of  course,  at  any  stage  of  the  proceedings,  when  his  true  name 
shall  become  known.^^  But  the  plaintiff  can  not  thus  use  a 
fictitious  name  at  his  discretion;  he  is  restricted  to  cases  where 
the  name  of  the  adverse  party  is  unknown,^"  and  must  aver  in 
the  pleading  that  the  true  name  of  the  party  is  to  the  plaintiff 
unknown.^^ 

27  Cocke  v.  Kendall,  Hempst.  2.36. 

28  Dwight  V.  Wing,  2  McIiCau,  .^)80.  Where  the  proper  venue  is 
laid  in  the  body  of  the  declaration,  the  county  in  the  margin  may 
lie  rejected  as  snnilusage.  1  Chit.  PI.  (8th  Am.  ed.)  274;  County 
Commissioners  v.  Wise,  71  Md.  43.  The  omission  of  a  venue  may 
be  availed  of  by  demurrer.     Crook  v.  Titcher,  01  Md.  510. 

29Cal.  Code  Civ.  Pro.,  §  474;  N.  Y.  Code  Civ.  Pro.,  §  451;  Morgan 
v.  Thrift.  2  Cal.  5(52;  see,  also,  Rosocrantz  v.  Rogers,  40  id.  491; 
ilcKinley  v.  Tuttle,  42  id.  577;  Campbell  v.  Adams,  50  id.  205; 
Harris  v.  Mervitt.  C:3  id.  118;  .Tones  v.  Pearl  Miu.  Co.,  20  Col.  417. 

30  Crandall  v.  P>each,  7  IIow.  Pr.  271;  People  v.  Herman,  45  Cal. 
092. 

31  Watorlnuy  v.  Mather,  10  Wend.  Oil;  Gardner  v.  Craft,  .")2  How. 

Pr.  409.     Wliere  a  defendant  is  sued  as  James  ,  seiwice  was 

returned    upon    John   ,    and    judgment   was    entered    against 


187  FORMAL    PARTS    OF    PLEADIXGS.  §§  319,  230 

S  219.   Title  of  cause  by  and   against  corporations. 

For)ii  No.  zj. 

[State,  County,  and  Court.] 


The  Mono  Gold  and  Silver  Mining 

Company,  Plaintiff, 

against 

The  Fort  Tejon  Railroad  Company, 

Defendants. 


§  220.  Tlie  same.  A  corporation  can  not  sue  otherwise  than 
by  its  corporate  name,^^  and  a  company  by  its  firm  name  or 
title.^^  In  Xew  York  a  banking  association  might  formerly 
sue  either  in  its  corporate  name  or  in  the  name  of  its  presi- 
dent.^'* This  did  not,  however,  take  the  place  of  the  averments 
necessary  in  the  body  of  the  complaint  showing  their  official 
character. 

The  word  "  person  "  in  its  legal  signification  is  a  generic 
term,  and  intended  to  include  artificial  as  well  as  natural  per- 
sons.^'' All  distinction  between  natural  and  artificial  persons, 
so  far  as  the  rules  of  pleading  applicable  thereto  are  concerned, 
is  abolish ed.^^ 

J :   Held  to  be  eiTor,  unless  there  was  something;  in  the  record 


to  show  that  the  person  served  was  the  person  sued.  Sutter  v. 
Cox,  6  Cal.  41.'i.  Where  parties  whose  names  are  unknown  are  sued 
by  fictitious  names,  the  record  must  show  these  facts.  Ford  v. 
Doyle,  37  Cal.  340.  It  was  held  that  a  petition  in  involuntai-y  in- 
solvency under  the  Insolvent  Act  of  1880.  which  described  the 
petitionintr  creditors  as  firms  or  copartnersliips,  was  sufficient,  al- 
though the  names  of  the  persons  comprising  the  firms  were  not 
given.    In  Matter  of  Russell,  70  Cal.  132. 

32Curtiss  V.  Murray,  28  Cal.  033;  87  Am.  Dec.  142;  Crawford  v. 
Collin.s,  30  How.  Pr.  398;  Allen  v.  Railway  Co.,  49  id.  14;  Christian 
Church  V.  McGowan,  02  Mo.  279. 

33  King  V.  Randlett,  33  Cal.  318. 

»4  I.eonardsvillc  Bank  v.  WiUard,  2.5  N.  Y.  !>74. 

an  Douglass  v.  Pacific  M.  S.  S.  Co.,  4  Cal.  304. 

31  San  Francisco  Cns  Co.  v.  The  City  of  San  Francisco,  9  Cal.  467; 
see,  alBO,  \  17,  Political  Code  of  California. 


Kg  •^•n-225  ANA1,^>^18  OF  i'Li:ai)1NGS.  188 

221.   The  state  on  the  relation  o 

For)ii  No.   2i. 

[State,  County,  and  Court.] 


J  221.   The  state  on  the  relation  of  an  individual. 

Form  No.   28. 


The  IVople  of  the  Stato  of  Cali- 
fornia, on  the  relation  of  John 
Doe,  riaiutiffs, 

against 
Klchanl  Koe.  Defendant. 


§   222.   By  guardian  ad  litem. 

Form  No.  2<). 

[State,  County,  and  Court.] 


John  Doe,  by  his  guardian  ad  litem, 
Richard   Roe,    Flaintiff, 

against  }■ 

The     Southern     Facifie     Railroad    j 
Company,    Defendant. 


J 


§   223.   By  assignee  for  creditors. 

Form  No.  30. 

[State,  County,  and  Court.] 


John  Doe,  as  Assignee  for  the 
Benefit  of  the  Creditors  of  James 
Roe,  Plaintiff, 

against 
Richard  Black. 


§   224.   By  and  against  national  banks. 
Form  No.  31. 
[State,  County,  and  Court.] 

The  First  National  Bank,  Plaintiff,    j 
again.<;t 


aguui.si  1 

The     Second     National     Bank,       [ 

Defendant.  | 

_-J 


§  225.  The  same.  In  allooring  the  corporate  existence  of  a 
national  hnnk,  it  is  sufficient  to  state  that  the  plaintiff  or  de- 
fendant is  a  cornoration  duly  incorporated  under  the  National 


189  FORMAL    PARTS    OF    PLEADIXGS.  §§  226-230 

Banking  Laws  of  the  United  States.  As  affecting  the  necessity 
of  giving  costs,  the  location  of  the  plaintiff's  place  of  business 
ehould  sometimes  be  alleged." 

§  226.   By  an  officer  of  the  state. 

Form  No.  32. 

[State,  County,  and  Court.] 


Andrew  Black,  Comptroller  of  the 
State  of  Califorria,  riaintiff, 

against 
Charles   Dean,    Defendant. 


§  227.  Name  of  officer.      The   action   should   be   brought   m 
the  name  of  the  officer,  with  the  title  of  his  office  annexed.^^ 

§   228.   Title  and  commencement. 

Form  No.  jj. 

[State,  County,  and  Court.] 


Andrew  Black,  I'laintlff, 

against 
Charles  Dean,  Defendant. 


The  plaintiff  complains  of  the  defendant,  and  alleges: 

§  229.  Commencement.  The  commencement  of  pleadings 
consists  of  those  formal  words  of  expression  used  to  introduce 
the  subject-matter, 

§   230.   Commencement  —  by  one  suing  for  himself  and  others. 
Form  No.  34. 
[State,  County,  and  Court.] 
The   plaintiff   complains   on    behalf   of   himself   and   of   all 
others  (jiulgment  creditors  of  the  defendant),  who  shall  in  due 
time  come  in  and  seek  relief  by  and  contribute  to  the  expenses 
of  this  action,  and  alleges: 

37  1  Ahli.  X.  r.  2r>2:  id.  •»)?.,  note;  t  id.  22};  .'">0  Hnrb.  .^.^O.  A  rom- 
plaiiit  in  an  action  l>y  a  naliniial  haiilc  imisl  stiiU-  where  It  Is 
loratrd.  Fanners',  etr-..  Nat.  Bank  v.  Rogers,  15  Civ.  Pro.  (N.  Y.) 
2.".0:  ?,  Nat.  Bk.  Cjis.  r,fi?,. 

38  ralge  V.  Fazackerley,  30  Barb.  392, 


SS  •';)!    •.•;>;5  ANAI,VSIS    ok    IM.KADlNCfS.  190 

§    231.   Conclusion  of  complaint. 

form   No.   35- 
Whoivforo  tlu'  plaint i IV  demands  judgment,  etc. 

E.  F.,  Attorney  for  Plaintiffs. 
[Veeification.] 

§  232.  Conclusion.  The  conclnsion  varies  according  to  the 
character  of  the  document  to  whicli  it  is  affixed.  In  a  com- 
phunt  it  consists  of  the  prayer  for  reUef,  signature  of  counsel, 
aud  verification;  while  in  an  affidavit,  the  signature  and  jurat 
only  are  required.  Wlun-e  two  attorneys,  partners,  subscribe 
a  pleading,  they  may  sign  in  their  firm  name.^^  And  the  sub- 
scription to  the  verilication  of  a  pU>ading  is  a  sufficient  subscrip- 
tion of  the  pleading.-'"  The  Codes  provide  that  every  pleading 
shall  be  subscribed  by  the  party  or  his  attorney.'*^  But  an  at- 
torney in  fact  who  is  not  an  attorney  at  law  can  not  sign  his 
name  to  the  complaint  for  his  principal  as  "  plaintiff's 
attorney."'*^ 

§  233.  Form  of  complaint,  complete. 
Form  No.  36. 

[State,  County,  and  Court.] 


Andrew  Black,  Plaintiff, 

against 
Charles  Dean,  Defendant. 


The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  For  a  first  cause  of  action: 

I.  That,  etc. 

II.  That,  etc. 

III.  That,  etc. 

2.  For  a  second  cause  of  action: 

I.  That,  etc. 
II.  That,  etc. 
III.  That,  etc. 
Wherefore  the  plaintiff  demands  judgment,  etc. 

E.  F.,  Plaintiff's  Attorney. 
[Verification".] 

30  Bank  of  Cenova  v.  Rice,  12  Wend.  424. 

40  nub])ell  V.  Livingston,  1  Code  R.  63. 

41  Cal.  Code  Civ.  Rro.,  §  446;  N.  Y.  Code  Civ.  Pro..  §  520. 
42Dixey  v.  Pollock,  8  Cal.  570.     Pleadings  in  .Justices'  Court  are 

not  rerpiired  to  lie  sul)soribed  by  the  party  or  his  attorney.     Mont- 
gomery V.  Superior  Court,  G8  Cal.  407. 


191  FORMAL    PAETS    OF    PLEADINGS.  §§  234-237 

§   234.   Clerk's  certificate  to  copy  of  complaint. 

Form  No.  j/. 

I  hereby  certify  the  foregoing  to  be  a  full,  true,  and  correct 
copy  of  the  original  complaint  on  tile  in  my  office,  in  the  above- 
ent it Jed  action. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  affixed 
the    seal    of   the    above-named    court,    this    day    of 


A.  C,  Clerk. 
By  J.  S.,  Deputy  Clerk. 

§  235.  Amended       complaint43  _  commencement. 

For»i  No.  s8. 
[State,  County,  Court,  and  Parties.] 
Plaintiff,  by  leave  of  the  court  [or  by  stipulation]  files  this 
his  amended  complaint  and  alleges: 
[State  cause  of  action  as  before.] 

f  236.  Formal  parts  of  defendant's  pleadings  —  commence- 
ment of  demurrer. 

Form  No.  39. 

[Title.] 

The  defendant  demurs  to  the  complaint  [or  to  the  first  al- 
leged cause  of  action  in  the  complaint]  filed  herein  and  for 
cause  of  demurrer  alleges: 

I.  That,  etc. 

IT.  That,  etc. 

§  237.  Grounds  of  demurrer.  The  defendant  may  state  as 
many  grounds  or  causes  of  demurrer  as  may  be  apparent  on 
the  face  of  the  complaint.  But  each  cause  or  ground  should 
be  distinctly  alleged,  and  be  numbered  in  the  margin  as  above, 
and  if  the  demurrer  is  sustained,  plaintifl'  may  obtain  leave  of 
court  to  fih^  an  amended  complaint,  Avhich  will  take  the  place 
of  the  original  complaint  in  the  action.^* 

43  Desiprnatlng  an  amendod  petition  as  a  su]>i)leinpntal  petition  is 
Immaterial  error.     Rcrof:).'in  v.  .Tolmston.  4.">  Neb.  714. 

44  See  this  subjeot  discussed  at  length  in  second  volume  under 
head  of  *'  Demurrer." 


§g  238-'-?41  ANALYSIS    OF    I'LKADINGS.  192 

S   238.    Form  of  answer. 

form  No.  40. 

[TlTLE.J 

The  ill' fondant,  by  G.  H.',  his  attorney,  answers  the  complaint 
lu'ii'in.  and 

1.  For  a  first  defense  to  the  first  alleged  cause  of  action, 
denies: 

1.  That,  etc. 

2.  For  a  second  defense  to  said  first  alleged  cause  of  action, 
defendant  alleges: 

I.  That,  etc. 

3.  For  a  third  defense  to  said  first  alleged  cause  of  action, 
defendant  alleges: 

[Set  forth  facts,  constituting  the  defense,  and  if  any  of  them 
have  been  alleged  above,  an  express  reference  to  them  will 
suffice.] 

4.  And  for  a  counterclaim  to  the  second  alleged  cause  of 
action,  defendant  alleges: 

I.  That,  etc. 

Wherefore  defendant  demands,  etc.  [stating  demand  on 
counterclaim]. 

G.  H.,  Attorney  for  Defendant. 
[Veeification.] 

§  239.  Attorney's  signature,  in  New  York  may  be  omitted 
where  he  has  served  a  notice  of  appearance;  and  where  two 
attorneys  are  partners  the  firm  name  will  suffice.'*^  But  the 
signature  of  counsel  must  be  attached  to  an  answer  in  chan- 
cery.^^ 

§  240.  Demand  of  relief.  No  demand  for  relief  is  neces- 
sary, unless  the  defendant  seeks  some  affirmative  relief  against 
the  plaintiff,  or  against  a  codefendant.^'^ 

§  241.  Denials  of  several  allegations  are  but  one  defense.'** 
So  several  demands  against  the  plaintiff,  available  as  a  set-off, 
jnay  be  pleaded  in  one  defense.  Each  must,  however,  be  dis- 
tinctly described.^^ 

«  Bank  of  Geneva  v.  Rice.  12  Wend.  424. 
■*«  Davis  v.  Davidson,  4' McLean,  136. 

47  Averill  v.  Taylor.  ^^  How.  Pr.  476. 

48  Otis  v.  Ross.  8  How.  Pr.  193;  11  N.  Y.  Leg.  Obs.  343. 
40  Ranney  v.  Smith,  6  How.  Pr.  420. 


193  FORMAL   PARTS    OF    PLEADINGS.  §g  242    245 

§  242.  Distinct  defenses.  Each  defense  in  an  answer  which 
is  declared  to  be  a  distinct  defense,  must  be  complete  in  itself, 
and  must  contain  all  that  is  necessary  to  answer  the  whole 
cause  of  action,  or  that  part  which  it  professes  to  answer,  either 
by  express  allegation  or  by  an  express  reference  to  other  parts 
of  the  answer;^*^  though  a  partial  defense  must  be  pleaded,  and 
may  be  pleaded  as  a  separate  defense.*^^ 

§  243.  First  alleged  cause  of  action.  If  the  complaint  con- 
tains more  than  one  cause  of  action,  the  answer  should  indicate 
to  which  cause  of  action  each  defense  is  interposed.^^  But  if 
the  substance  of  the  defense  shows  to  which  cause  of  action 
it  is  addressed,  it  is  sufficient  on  demurrer.^^ 

§  244.  For  a  first  or  second  defense.  Where  a  number  of 
defenses  are  pleaded  in  one  answer,  they  must  be  separately 
stated  and  plainly  enumerated,  and  the  denials  should  be  dis- 
tinctly and  specifically  stated.  Consequently,  there  is  but  one 
safe  rule  in  stating  actions  or  defenses,  and  that  is  to  indicate 
distinctly,  by  fit  and  appropriate  words,  where  it  commences 
and  where  it  concludes.'^'*  But  no  formal  commencement  or 
conclusion  is  prescribed.^'^ 

§  245.  Verification.  A  verified  answer  is  defective  if  neither 
the  answer  nor  the  verification  is  subscribed.^^  The  subscrip- 
tion of  the  verification  is,  however,  sufficient.*^^  An  answer 
in  chancery  which  does  not  show  the  authority  of  the  justice 
of  the  peace  before  whom  it  was  sworn,  if  not  within  the  state, 
is  not  sufficiently  certified.^^  If  the  complaint  is  verified,  the 
answer  must  be  also  verified.'^* 

DO  Loosey  v.  Orser,  4  Bosw.  391 ;  Ayres  v.  Covill,  18  Barb.  260. 

01  Loosey  v.  Orser,  4  Bosw.  391. 

62  Knoedler  v.  Stemberp,  10  How.  Pr.  67. 

M  AVillls  v.  Taggard,  6  How.  Pr.  433. 

64  Lipi>encott  v.  Goodwin,  8  How.  Tr.  1^42;  see  Benedict  v.  Sey- 
mour. 0  Id.  298. 

r«s  Bridge  v.  Payson.  .'V  Pandf.  210. 

6«  T.ainilieer  v.  Allen.  2  Sandf.  648;  2  Code  R.  15. 

67  Hiibl^ll  V.  T.ivlngpton.  1   Sandf.  3. 

65  Addison  v.  Dnckeft,   1   Tianeh  C.  C.  .'^49. 

59  Bee  post,  pt.  2,  c.  3,  "  Verification  of  Pleadings." 

Vol.  1—25 


§§  -^Ml'.-vTil  ANALYSIS    OF    PLEADINGS.  194 

§   246.   Commencement   of   answer   by   defendant   sued   by   a 
wrong  name. 

Form  No.  41. 

[Title.] 
Defendant,  C.  D.,  in  the  summons  and  complaint  in  this 
action,  called  L.  M.,  answers  the  complaint  herein,  and  alleges 
[or  denies] : 

$  247.  Commencement  of  answer  by  an  infant. 

Form  No.   42. 

[Title.] 

Defendant,  an  infant,  under  the  age  of  years,  by 

N.  0.,  his  guardian,  answers  the  complaint  herein,  and  alleges 
[or  denies] : 

§  248.   Commencement  of  answer  by  an  insane  person. 

Form  No.  43. 
Defendant,  Q.  R.,  an  insane  person  [or  a  person  of  unsound 
mind,  or  an  idiot],  by  S.  T.,  his  guardian,  answers  the  com- 
plaint herein  and  alleges  [or  denies] : 

§  249.   Commencement  of  answer  by  husband  and  wife. 

Form  No.  44. 

[Title.] 
A,  X.,  one  of  the  above-named  defendants,  and  B.  X.,  his 
wife,  for  answer  to  the  complaint  in  this  action,  allege   [or 
deny]  :^ 

§   250.   Commencement  of  separate  answer  of  defendant. 

Form  No.  45. 
[Title.] 
The  defendant,  A.  B.,  answers  on  his  own  behalf  the  com- 
plaint herein,  and  alleges   [or  denies] : 

§   251.   Forms  of  petitions  —  petition  to  the  court. 
Form  No.   46. 
[Title.] 

To  the  honorable,  the  Superior  Court  of  the  county  of , 

state  of  California  [or  other  court  with  full  designation] : 

The  petition  of ,  of  the  city  of , 

shows: 

eo  The  abovp  must  not  be  understood  as  an  allegation  that  the 
parties  are  husband  and  wife. 


195  FOiiMAL  PARTS  OF  pleadi:n^gs.  §§  252-256 

§  252.  Petition  to  a  judge. 

Form  No.  47. 
[Title.] 

To  the  honorable ,  judge  of  the  Superior  Court 

of  the  county  of   ,  state  of  California   [or 

other  magistrate,  giving  full  official  designation]. 
The  petition  of,  etc. 

§  253.   Caption  of  papers  vised  in  probate  proceedings  —  de- 
cedent's estate. 

Form  No.  48. 

[State,  Couet,  and  County.] 


In    the    Matter    of    the    Estate    of  I 
John  Doe,  Deceased.  r 

J 

The  petition  of,  etc. 

S  254.  Tie  same  —  minor's  estate. 

Form  No.  49. 

[State,  Court,  and  County.] 

1 

In    the    Matter    of    the    Estate    of   I 

John  Doe,  a  Minor.  [ 

J 

The  petition  of,  etc. 

S   255.   The   same  —  insane  person's   estate. 

Form  No.   50. 

[State,  Court,  and  County.] 

1 


In    the    Matter    of    the    Estate    of 
John  Doe,  An  Insane  Person. 


§  256.  Caption  of  papers  used  in  insolvency  proceedings.Oi 

Form   No.   51. 

[State,  County,  and  Court.] 


":;i 


In    the    Matter    of    the    Estate    ^.    . 
.Tohn  Doe,  nn  Insolvent  I)pl)tor.       [ 

.       J 

61  See.  as  to  snfflclency  of  petition  In  Inaolveacy,  Moyk  v.  Peter- 
son,  75  Pal.  400. 


§§257-261  ANALYSIS   OF    PLEADlxNCiS, 

i  257.  Caption  of  papers  on  habeas  corpus. 

Form  No.  52. 

[State,  County,  and  Court.] 

1 


196 


In   the    Matter   of    John    Doe,    on 
Habeas  Corpus.  \ 

J 

§  258.  Caption  of  papers  on  disbarment  of  attorney.62 
Form  No.  33. 
[State,  County,  and  Court.] 


In  the  Matter  of  the  Application 
for  the  Disbarment  of  .John  Doe, 
a  inemlx'r  of  the  bar  of  tliis  court, 
and  to  revoke  the  certificate  is- 
sued to  him  by  this  court. 


I  259.  Caption  of  papers  used  in  other  covirts. 

Form  No.  34. 


1 

John  Doe,  Plaintiff,  | 

against  }■  County  Court County. 

Richard  Roe,  Defendant.  | 
.} 


§   260.   Caption  of  papers  used  in   Justices'  Courts. 
Form  No.  33. 

In  the  Justice's  Court  of  the  township  of ,  county 

of ,  state  of  California. 


John  Doe,  Plaintiff, 
against 
Richard  Roe,  Defendant.  j 


J 


§   261.   Order  of  a  court  in  an  action. 

Form  No.  36. 

At  a  regular  term  of  the  Superior  Court  of  the  city  and 

county  of ,  state  of  California,  held  at  the  City 

Hall  in  the  city  and  county  of  San  T'rancisco,  etc. 

Present:    The  Honorable ,  Judge. 

"2  wiien  it  appears,  upon  full  investigation,  that  an  attorney  has 
forfeited  his  "  pood  moral  fharactor,"  and  has  by  his  conduct  shown 
himself  unworthy  of  his  office,  it  becomes  the  duty  of  the  court 


197  FORMAL    PARTS   OF    PLEADINGS,  §§  2G2,  2C3 

g  262.  Caption,  cotumeucement  and  couclusiou  of   affidavits. 
Form  No.  57. 
[State,  County,  and  Court.] 
_ >j 

John  Doe,  Plaintiff,  | 

against  )■  Affidavit  for  

Richard  Roe,  Defendant. 

State  of  California, 

County  of   

John  Doe,  of [and  if  there  are  two  deponents, 

and  James  Doe,  of ,  severally] ,  being  duly  sworn, 

say  [each  for  himself] : 

1.  I  am  the  plaintiff  [or  other  description  of  the  deponent]. 

2.  I  have,  etc.     [State  facts  sworn  to.] 

[Signature]    

Subscribed  and  sworn  to  before  me,  this  ) 
day  of   ,18..        / 

[Seal.]  E.  F., 

Notary  Public. 

§  263.  Afldavits  —  before  whom  can  be  taken.  Affidavits  to 
be  used  before  any  court,  judge  or  officer  of  the  state  (Cali- 
fornia), may  be  taken  before  any  judge  or  clerk  of  any  court, 
justice  of  the  peace,  or  notary  public  in  the  state.^^  And  an 
affidavit  in  which  the  official  character  of  the  justice  before 
whom  it  is  taken  does  not  appear  is  good,®*  as  courts  take  judi- 
cial notice  of  the  official  character  of  justices  of  the  peace  in 
their  own  states.  An  affidavit  taken  in  another  state  of  the 
United  States,  to  be  used  in  this  state,  may  be  taken  before  a 
commissioner  appointed  by  the  governor  of  this  state  to  take 
affidavits  and  depositions  in  such  other  state,  or  before  any 
notary  public  in  another  state,  or  before  any  judge  or  clerk  of 

to  revoke  the  authority  It  gave  him  upon  his  admission.  People 
ex  rel,  etc.,  v.  Keejran,  18  Col.  2.37. 

csCal.  Code  Civ.  Pro.,  §  2012.  It  Is  not  necessary  for  a  deputy 
clerk,  before  whom  affidavits  are  sworn  to.  to  sign  his  principal's 
name  to  the  jurat.  Miiller  v.  BoRgs,  25  Cal.  175;  People  v.  Wheat- 
ley.  S8  Id.  114. 

64  Ede  V.  Johnson,  15  Cal.  53. 


§§  21U-267  ANALYSIS    OF    PLEADINGS.  198 

a  court  of  record  having  a  scal/'^  An  allidavit  taken  in  a  foreign 
country,  to  be  used  in  this  stAte,  may  be  taJcen  before  an  em- 
bassador, minister,  consul,  vice-consul,  or  consular  agent  of  the 
United  States,  or  before  any  judge  of  a  court  of  record  having 
a  seal,  in  such  foreign  country.^^  When  an  affidavit  is  taken 
before  a  judge  or  a  court  in  another  state,  or  in  a  foreign  country, 
ihc  genuineness  of  the  signature  of  the  judge,  the  existence  of 
the  court,  and  the  fact  that  such  judge  is  a  member  thereof,  must 
be  certified  by  the  clerk  of  the  court  under  the  seal  thereof.^'^ 

§  264.  The  same  ^  date.  The  jurat  should  state  the  day  on 
which  it  was  sworn,*'^  unless  it  is  shown,  when  the  objection  is 
raised,  that  it  was  sworn  in  due  season  for  its  purpose.  So  held 
where  it  was  shown  by  the  opposing  affidavit  that  the  oath  was 
taken  before  the  judgment  was  entered.^^ 

§  265.  The  same  —  entitling  affidavit.  Of  course,  when  there 
is  no  proceeding  pending,  the  affidavit  must  not  be  entitled. 
Though  it  has  been  held  that  a  superfluous  title  may  be  disre- 
garded as  not  affecting  the  substantial  rights  of  the  party.^*^ 

§  266.  The  same  —  information  and  belief.  It  is  entirely 
useless  in  the  affidavit  to  a  pleading  to  insert  the  words  "  except 
as  to  those  matters  stated  on  information  and  belief,  and  as  to 
those  matters  he  believes  it  to  be  true,"  unless  the  pleading  con- 
tains some  averment  on  information  and  belief.'^^ 

§  267.  The  same  — jurat.  The  jurat  should  be  in  a  special 
form  where  deponent  is  illiterate,^^  qj.  blind.''^  otherwise  the 
common  form  is  sufficient."^^  .  It,  however,  seems  to  be  sufficient 
if  a  party  hears  the  paper  read,  and  swears  he  knows  its  contents. 

C5  Cal.  Code  Civ.  Tro.,  §  2013. 

66  Id.,  §  2014. 

67  Id.,  §  2015. 

68  Doe  V.  I{oe,  1  Chit.  228;  18  Eng.  Com.  D.  133. 

69  Schoolcraft  v.  Thompson,  7  How.  Pr.  446. 

70  Pindar  v.  Black,  4  How.  Pr.  95. 

71  But  sec  lYuscott  v.  Dole,  7  How.  Pr.  221;  Patterson  v.  Ely,  18 
Cal.  2.S;  Kelly  v.  Kelly,  1  West  Coast  Kep.  143. 

72Tidd's  Pr.  405;  3  Moult.  Ch.  Pr.  551. 

73  Matter  of  Christie,  5  Paige,  242;  see,  also.  Matter  of  Cross,  2 
Ch.  S<:'nt.  3. 

74  Frayatt  v.  Lindo,  3  Edw.  Ch.  239. 


199  FORMAL    PARTS    OF   PLEADINGS.  §§  268-271 

§  268.  The  same  —  names  of  deponents.    The  names  of  all  the 
deponents  should  be  mentioued.^^ 

§  269.  The  same  — place.       The  jurat  need  not  specify  the 
place  where  it  was  sworn,  as  tlie  venue  sufficiently  shows  it.''* 

§  270.  The  same  —  severally  sworn.       The     affidavit     should 
show  that  they  were  severally  swom."^ 

§  271.  The  same  — state  and  county.  It  has  been  held  that 
the  omission  of  the  venue  from  an  affidavit  is  fatal.  The  venue 
is  an  essential  part  of  every  affidavit,  and  prima  facie  evidence 
of  the  place  where  it  was  taken.'^^  This  certainly  can  not  be 
laid  down  as  the  rule  with  all  classes  of  affidavits.  If  by  the 
venue  it  appears  that  the  affidavit  was  taken  at  a  place  beyond 
that  where  the  officer  was  authorized  to  act,  it  will  not  be  re- 
ceived by  the  court.'''^  But  it  is  no  objection  that  it  does  not 
appear  that  the  affidavit  was  sworn  to  within  the  limits  of  the 
city  for  which  the  commissioner  was  appointed.  The  court  will 
not  presume  the  contrary.^"  An  affidavit,  notice,  or  other  paper 
without  the  title  of  the  action  or  proceeding  in  which  it  is  made, 
or  with  a  defective  title,  is  as  valid  and  effectual  for  any  purpose 

7B  Anonymoua,  2  Chit.  19;  18  Eng.  Com.  L.  235. 

76  1  Tidd's  Pr.  496;  Moslier  v.  Heydrick,  45  Barb.  549;  1  Abb.  Pr. 
(N.  S.)  258;  30  How.  Pr.  1<>1;  Behlon  v.  Devoe.  12  Wend.  223; 
Manufacturers  &  ]MechanIcs'  Bank  v.  Oowden,  3  Hill,  461. 

7T  Pardee  v.  Territt,  5  M.  &  G.  291;  44  Bng.  Com.  L.  159;  Kln- 
cald  V.  Kipp.  1  Duer,  692;  11  N.  Y.  Leg.  Obs.  313. 

78  Lane  v.  Morse,  6  How.  Pr.  394;  Cook  v.  Staats,  18  Barb.  407; 
compare  I'arker  v.  Baker,  8  Paige,  428;  Barnard  v.  Darling,  1  Barb. 
Ch.  218. 

79  Davis  V.  Rich,  2  How.  Pr.  86;  Sandland  v.  Adams,  id.  127; 
Snyder  v.  Olmstead,  Id.  181. 

60  Parker  v.  Baker,  8  Paige,  428.  An  aindavit  is  not  fatally  de- 
fective because  it  does  not  state  a  venue.  Tlie  omission  may  l)e 
supplied  by  amendment.  Baboock  v.  Kuntzsch,  S5  Hun,  33.  The 
Important  thing  is  that  it  shall  appear  that  the  oath  was  adminis- 
tered by  a  i>erson  authorized  to  administer  such  oaths.  When  this 
appears,  the  presumi)tion  In  tlie  absence  of  a  venue  is,  that  the 
officer  Ix'fore  whom  the  allidavit  was  made  acted  within  his  juris- 
diction, wlicn  it  was  swoni  to  and  signed  before  him.  Reavis  v. 
C<nvell,  5r,  Cal.  .5SX;  State  v.  Hcnning,  3  S.  Dak.  402;  Railway  Co. 
V.  Deane.  60  Ark.  r>24\  but  sev  Barhydt  v.  Alexander,  59  Mo.  App. 
18S.  An  afTldavit  for  an  attachment  wliich  states  tlie  county  but 
omits  the  letters  "  ss,"  is  not  defective.  Mercantile  Co.  v.  Glenn, 
6  Utah,  139. 


^5j  •JV'.J-v'T.")  ANALYSIS    Ol'    I'LKADliNliS.  iJOO 

as  if  duly  I'litillecl,  il'  it  intelligibly  refer  to  suck  action  or  pro- 
ceoiliiiti.'''' 

§  272.  The  same  —  subscription.  The  affidavit  should  be 
Bubseribed  by  deponent  or  depouents.^^ 

§  273.  The  same  —  subscription  to  jurat.  The  jurat  must  be 
subscribed  by  the  ollicer,  with  his  official  addition.**^  An  atH- 
davit  should  show  upon  its  face  that  it  was  made  before  some 
officer  competent  to  take  affidavits.^^ 

§  274.  The  same  —  that  I  am,  etc.  The  description  or  resi- 
dence of  dei)onent  should  be  directly  alleged  as  above.^^ 

§   275.   Certificate  of  clerk  to  affidavit. 

Form  No.   58. 

State  of  

County  of 

I,  S.  T.,  clerk  of  the  County  Court  of  said  county  of 
do  hereby  certify  that  0.  P.,  before  whom  the  above  affidavit 
was  taken,  is  a  Judge  of  the  County  Court  [or  other  title], 
which  is  a  court  of  record  of  said  state  [or  county,  as  the  case 
may  be],  having  a  seal,  existing  pursuant  to  the  laws  thereof, 
in  and  for  said  county  [or  country,  district,  or  otherwise],  and 

81  Cal.  Code  Civ.  Pro.,  §  104G;  and  see  Butler  v.  Ashworth,  100 
Cal.  334. 

82  1  Newl.  Ch.  Pr.  16;';  Hathway  v.  Scott,  11  Paige,  173;  over- 
ruling in  effect,  Haff  v.  Spicer,  3  Cal.  190;  Ool.  &  C.  Cas.  495;  and 
Jackson  v.  Virgil,  3  Johns.  ,540,  which  held  that  if  an  affidavit 
begins  witli  the  names  of  the  deponent,  and  appears  to  have  been 
duly  sworn  to  before  a  proper  magistrate,  it  is  sufficient  without  the 
signaturo  of  deponent;  see,  also,  Ede  v.  Jolmson,  15  Cal.  57;  ap- 
proved in  Pope  V.  Kirclmer,  77  id.  152,  156;  and  compare  Metealf 
v.  Prescott,  10  Mont.  294;  State  v.  County  Commissioners,  5  Nev. 
320. 

83  Ladow  V.  Groom,  1  Den.  420;  Jackson  v.  Stiles,  1  Cow.  575; 
compare,  as  to  addition.  Hunter  v.  Le  Conte,  6  id.  728. 

84  I.ane  v.  Morse,  6  How.  Pr.  39.5.  It  is  no  objection  to  an  affi- 
davit tliat  tlie  notary-  before  whom  it  is  taken  is  attorney  in  the 
action  in  which  the  affidavit  is  to  be  used.  Reavis  v.  Oowell.  56 
Cal.  588. 

85  Steinbach  v.  I.eese,  27  Cal.  298;  Ex  parte  Bank  of  Monroe,  7 
Hill,  177;  42  Am.  Dec.  01;  Cunningham  v.  Goelet,  4  Den.  71;  Staples 
V.  Fairdiild,  3  N.  Y.  41;  Payne  v.  Young,  8  id.  158;  compare  People 
V.  Ramson,  2  id.  490. 


2ijl  FORMAL    PAKTS   OF    PLEADINGS.  §§  2Tu,  277 

that  he  is  duly  qualified  and  coininissioned  as  such,  and  that  the 
subscription  to  the  same  is  his  genuine  signature. 

Witness  my  hand  and  the  seal  of  said  court,  at , 

this   day  of   ,  18... 

[Seal.]  S.  T.,  County  Clerk. 

§  276.  Jurat,  where  deponent  is  blind  or  illiterate. 
Fonn  No.  59. 

Sworn  before  me,  this   day  of  ,  18. ., 

the  same  having  been  in  my  presence  [or  by  me]  read  to  the 
deponent,  he  being  blind  [or  illiterate] ,  and  he  appearing  to  me 
to  understand  the  same. 

E.  S.,  Notary  Public. 

§  277.  Jurat,  where  deponent  is  a  foreigner. 

Form  No.   60. 

Sworn  before  me,  this day  of ,  18 . . ,  I 

having  first  sworn  R.  M.,  an  interpreter,  to  interpret  truly  the 
same  to  the  deponent,  who  is  a  foreigner  not  understanding  the 
language,  and  he  having  so  interpreted  the  same  to  deponent. 

A.  C,  County  Clerk. 

26 


CHAPTER  III. 

VERIFICATION  OF  PLEADINGS. 

§  278.  Provisions  of  code  in  regard  to  verification.  The 
Codes  of  all  states  which  have  adopted  the  reformed  system  of 
procedure  contain  provisions  in  regard  to  verilication  of  plead- 
ings. In  California  the  Code  provides  that  every  pleading  must 
be  subscribed  by  the  party  or  his  attorney;  and  where  the 
con)plaint  is  verified,  or  when  the  state,  or  any  officer  of  the 
state,  in  his  official  capacity,  is  plaintiff,  the  answer  must  be 
verified,  unless  an  admission  of  the  truth  of  the  complaint  might 
subject  the  party  to  a  criminal  prosecution,  or  unless  an  officer 
of  the  state,  in  his  official  capacity,  is  defendant.  In  all  cases 
of  a  verification  of  a  pleading,  the  affidavit  of  the  party  must 
state  that  the  same  is  true  of  his  own  knowledge,  except  as  to 
the  matters  which  are  therein  stated  on  his  information  or  belief 
and  as  to  those  matters  that  he  believes  it  to  be  true;  and  whero 
a  pleading  is  verified,  it  must  be  by  the  affidavit  of  a  party,  unless 
the  parties  are  absent  from  the  county  where  the  attorney  re- 
sides, or  from  some  cause  are  unable  to  verify  it,  or  the  facts  are 
within  the  knoMdedge  of  his  attorney,  or  other  person  verifying 
the  same.  When  the  pleading  is  verified  by  the  attorney,  or 
any  other  person  except  one  of  the  parties,  he  must  set  forth  in 
the  affida\'it  the  reason  why  it  is  not  made  by  one  of  the  parties. 
Wlien  a  corporation  is  a  party,  the  verification  may  be  made  by 
any  officer  thereof.^ 

§  279.  Construction  of  statute.  The  object  of  the  verification 
is  to  secure  good  faith  in  the  averments  of  the  party.^  There 
is  nothing  in  the  statute  absolutely  requiring  the  complaint  to 
be  verified,  with  the  exception  of  complaints  in  actions  for  an 
injunction.^     Or  in  actions  brought  against  steamers,  boats  and 

1  Cal.  CcKle  Civ.  Pro..  §  440;  and  see  United  States  v.  Shoup,  2 
Idaho.  459;  Matter  of  Close,  lOG  Cal.  574. 

2  Patterson  v.  Ely,  19  Cal.  28.  By  the  verification  of  a  complaint, 
the  plaintiff  makes  its  statements  his  own.  Johnson  v.  Powers,  G5 
Cal.  179. 

a  Cal.  Corle  Civ.  Pro.,  §  527. 


303  VERIFICATION    OF    PLEADINGS.  §  279 

vessels.*  So  also  in  proceedings  against  attorneys."^  And  in 
applications  for  the  voluntary  dissolution  of  corporations.^  And 
such  other  actions  as  are  specially  provided  for.  The  safer  and 
better  practice,  however,  is  to  verify  the  complaint  in  all  cases, 
and  if  the  complaint  is  verified,  the  answer,  as  above  stated,  shall 
be  verified  also,  except  when  an  admission  of  the  truth  of  the 
complaint  might  subject  the  party  to  prosecution  for  felony  or 
misdemeanor.'^  Unless  such  prosecution  is  barred  by  the  Statute 
of  Limitations.^  And  when  the  court  could  not  see  from  the 
pleadings  themselves  that  the  admission  of  the  allegations  in 
the  complaint  would  subject  the  defendant  to  a  criminal  prose- 
cution, he  may  show  that  fact  by  affidavit.'*  So  also  whenever 
the  defendant  would  be  excused  from  testifying  as  a  witness  to 
the  truth  of  any  matter  denied  by  the  answer,  he  need  not  verify 
the  answer.^''  But  defendant  is  not  excused  from  verifying  his 
answer  when  the  complaint  charges  him  with  fraud  in  making 
the  assignment."  Such  verification  should  be  by  the  affidavit  of 
the  party,  and  if  he  be  absent  from  the  county,  then  by  his 
attorney,  or  other  person  having  a  knowledge  of  the  facts.^^  A 
verification  is  sufficient  if  it  conform  substantially  to  the 
statute.^' 

4  Cal.  Code  Civ.  Pro.,  §  815. 
Bid.,  §  291. 

«  Id,,  §  1229.  A  petition  in  habeas  corpus  must  be  verified.  Ex  parte 
Buclvley,  105  Cal.  123. 

7  Wheeler  v.  Dixon,  14  How.  Pr.  1.51;  Anable  v.  Anablo,  24  id.  92. 
The  Code  reqniroment,  that  when  any  pleading  is  verified  every 
subsequent  pleadinjr,  excei)t  a  deniurrer,  nmst  be  verified  also,  is 
mandatoiT.  Perras  v.  Ilailroad  Co.,  5  Col.  App.  21;  and  see  Cromp- 
ton  V.  Crow,  2  Utali.  24.5;  Alford  v.  McCoruiac,  9U  N.  C.  151. 

8  Henry  v.  Salina  Bank,  1    N.  Y.  8G. 

e  Scoville  v.  New,  12  IIow.  Pr.  31X);  Lynch  v.  Todd,  13  id.  547; 
Wheeler  v.  Dixon,  14  id.  151;  Anable  v.  Anable,  24  id.  92;  Moloney 
V.  Dows,  2  Hilt.  241;  Plaisdcll  v.  Kayniond,  5  Abb.  Pr.  144. 

lODnim  V.  Wliitinp,  9  Cal.  422;  Blaisdell  v.  llayinond,  5  Abb.  Pr. 
144;  j^e  Tappan,  9  How.  Pr.  394;  Moloney  v.  Dows,  2  Hilt.  247; 
People  v.  Kelly,  24  How.  I'r.  .'Wi;  Clapi)er  v.  Fitzpatrielc.  1  Code  11. 
09. 

11  Woleott  V.  Winston,  8  Abb.  Pr.  422. 

12  Sec  Cal.  Prac.  Act,  §  .55;  N.  Y.  Code  Civ.  Pro.,  §  525;  consult,  also, 
Huniplireys  v.  McCall,  9  Cal.  59;  70  Am.  Dec.  G21;  Ely  v.  Frisbie, 
17  Cal.  2.50;  Patterson  v.  Kly,  19  id.  28. 

18  2  Sandf.  047;  Ely  v.  Frisbie,  17  Cal.  250. 


§§  :l\sii-"-.*Sv'  analysis  of  i-lkadings.  204 

§  280.  Defective  verification.  A  defect  in  verification  of  a 
conii)laiiit,  even  when  apparent  u]»()n  its  face,  does  not  render 
tlio  complaint  irregular,  because  a  verification  is  no  part  of  a 
pleading.'"*  It  only  ojierates  to  relieve  the  defendant  from  the 
obligation  to  verify  his  answer.  This,  however,  can  not  be  in 
cases  where  tlie  comj)laint  is  required  to  be  sworn  to.  If  such 
defect  be  latent,  the  remedy  is  by  motion,^^  and  not  by  de- 
murrer.''' 

The  objection  to  the  want  of  verification  of  a  complaint,  where 
verification  is  required  l)y  statute,  must  be  taken  either  before 
answer  or  with  the  answer.  The  filing  of  the  answer  waives  the 
defect. ^'^  So,  also,  the  objections  to  the  verification  to  the  com- 
plaint, that  it  was  not  authenticated  by  the  seal  of  the  notary; 
that  there  was  no  venue  to  the  affidavit;  that  there  was  no  evi- 
dence that  the  officer  was  a  notary  public,  etc.,  being  technical, 
should  be  taken  in  the  court  below  and  can  not  be  raised  for  the 
first  time  in  the  Supreme  Court. ^^ 

§  281.  Before  whom  may  be  taken.  The  attorney  of  the 
plaintiff,  being  a  notary,  may  take  the  affidavit  verifying  the 
complaint.^^ 

§  282.  Subscription  to  verification.  The  verification  must  be 
subscribed  by  the  party  making  it.^''  And  such  subscription,  it 
has  been  held,  was  a  sufficient  subscription  of  a  pleading.^^  A 
verified  answer  is  defective  if  neither  the  answer  nor  the  verifica- 
tion is  subscribed.^^ 

14  George  v.  McAvoy,  6  How.  Pr.  200;  Williams  v.  Kiel,  11  id.  374. 
13  Gilmore  v.  Hempstead,  4  How.  Pr.  153. 

16  Seattle  Coal  Go.  v.  Thomas,  .57  Cal.  197;  Fritz  v.  Barnes,  6  Neb. 
43.5;  Warner  v.  Warner,  11  Kans.  121;  Pudney  v.  Burkhardt,  62 
Ind.  170;  Champ  v.  Kendrick,  l.SO  id.  ,549. 

17  Greonfit4d  v.  Steamer  Gunnell,  G  Oal.  09;  Laimbeer  v.  Allen, 
2  Code  R.  15;  see  Cal.  Code  Civ.  Pro.,  §  434;  Pence  v.  Durbin,  1 
Idaho.  .5.50. 

15  Kuliland  v.  Sedgwick,  17  Cal.  123. 

if»  Id.;  Young  v.  Young,  18  Minn.  90;  contra,  Meade  v.  Thome,  2 
West.  L.  M.  312;  Warner  v.  Warner,  11  Kans.  121;  Peyser  v.  Mc- 
Cormack,  51  How.  Pr.  20.5.  A  notary  public,  who  is  an  attorney's 
clerk,  may  administer  an  oath  to  verify  a  pleading  prepared  by 
the  attorney.     Schuyler  Nat.  Bank  v.  Bollong,  24  Neb.  821. 

20  Laimbeer  v.  Allen.  2  Sandf.  048. 

21  Ilnbbell  v.  Livincston,  1  Code  R.  03;  Barrett  v.  Joslynn,  29 
N.  Y.  Siipj..  1070;  01  St.  Itcp.  005;  0  Misc.  407. 

22  Laimbeer  v.  Allen,  2  Sandf.  &48;  S.  0.,  2  Code  R.  15. 


205  VERIFICATION    OF    PLEADINGS.  §§  283-285 

§  283.  Wlien  answer  may  be  verified  —  amendment.  A  de- 
fendant may  be  allowed  to  verify  his  answer  before  or  at  the 
trial. ^  If  defendant  omit  to  verify  the  answer  to  a  verified 
complaint,  the  plaintiff  may  proceed  as  if  no  answer  was  filed.^^ 
Inability  of  counsel  to  obtain  defendant's  verification  in  time 
can  not  avail  in  resisting  a  motion  to  strike  out.^  If  the  verifi- 
cation be  omitted  or  defective,  the  court  may  allow  the  same  to 
be  inserted  or  amended.^ 

§   284.   Verification  by  sole  plaintiff  or  sole  defendant. 
Form  No.  6i. 
State  of  California, 

City  and  County  of 

A.  B.,  the  plaintiff  [or  defendant]  above  named,  being  duly 
sworn,  says  as  follows: 

I  have  read  the  foregoing  complaint  [or  answer]  and  know 
the  contents  thereof,  and  that  the  same  is  true  to  the  best  of  my 
knowledge. 

[Signature.] 
Subscribed  and  sworn  to  before  me, 

this  ....  day  of ,  18. . 

J.  K.,  County  Clerk. 

S   285.   On  information  and  belief. 

Form  No.  62. 
[Venue.] 
A.  B.,  the  plaintiff  above  named,  being  duly  sworn,  says  as 
follows: 

I  have  read  the  foregoing  complaint  and  know  the  contents 
thereof,  and  that  the  same  is  true  of  my  own  knowledge,  except 

23  Angier  v.  Masterson,  6  Cal.  Gl;  Arrinpton  v.  Tupper,  10  Id.  464; 
Lattimor  v.  liyan,  20  id.  028. 

24  Stout  V.  Curran,  7  How.  Tr.  30;  Moloney  v.  Dows,  2  Hilt.  247; 
Hull  V.  Ball  14  How.  Pr.  30.5;  McCuUough  v.  Clark,  41  Cal.  298; 
LIttlf'john  V.  Munn,  3  Taifre  Oli.  280. 

2r.  Drum  v.  Whitinp:.  9  Cal.  422. 

26  lioyU's  V.  Iloyt,  2  West  !>.  M.  548;  White  V.  Freese,  2  C.  S.  C.  R. 
30;  Brapp  v.  Bickford.  4  How.  Pr.  21;  .Tones  v.  United  States  Slate 
Co..  10  Id.  129;  D.avis  v.  Pottor.  4  How.  l.^.'S.  As  to  the  effect 
of  a  verification  when  a  written  instninicnt  is  embodied  in  a  com- 
plaint, consult  r.nl.  C^nle  Civ.  Pro.,  §  447;  Corcoran  v.  Doll.  32  Cal. 
83;  see.  also.  Heath  v.  I>ont.,  1  id.  411.  When  embodied  in  an  an- 
swer, see  Cal.  Code  Civ.  Pro.,  §§  448,  449. 


§  '^80  ANALYSIS    OF    ri.F.A  DIN  US.  206 

as  to  those  matters  therein  stated  on  information  or  [and]  belief, 
and  lis  to  those  matters  1  believe  it  to  be  true. 

[Signature.] 
Subscribed  and  sworn  to  before  me, 

this day  of ,  18.  . 

J.  K.,  Notary  Public. 

{  286.  The  same.  There  seems  to  be  no  reason  why  our  statute 
prescribes  that  the  verification  sliall  be  "  upon  infonna- 
tion  or  belief,"  instead  of  "  upon  information  and  belief,"  yet 
thf  former  is  the  statute  of  this  state;  in  New  York  the  statute 
is  dili'erent;  there  the  word  "  and"  is  used.  Tiiere  can  be  no 
reason  why  the  language  of  the  verification  should  not  follow 
the  language  of  the  pleading  verified.  In  such  case  the  verifi- 
cation should  use  the  word  "  or  "  or  "  and  "  to  correspond  with 
the  pleading.  The  word  "  belief  "  is  to  be  taken  in  its  ordinary 
sense,  and  means  the  actual  conclusion  of  the  party  drawn  from 
information.  Positive  knowledge  and  mere  belief  can  not  exist 
together.^  If  the  pleader  avers  matters  "  upon  information 
and  belief,"  or  "  upon  information  or  belief,"  the  verification 
will  be  sufficient  if  his  affidavit  states  that  as  to  the  matters 
thus  alleged  he  believes  the  pleading  to  be  true.^^  Where  the 
pleader  states  nothing  on  the  information  or  belief,  the  verifica- 
tion need  not  mention  the  same.^  If,  however,  there  are  such 
allegations  in  the  pleading,  an  allegation  that  "  the  same  are 
true  according  to  the  best  of  his  knowledge  and  belief,"  is  in- 
sufficient.^^ So,  also,  a  verification  alleging  that  "the  same  is 
substantially  true,"  etc.,  was  held  insufficient,  as  containing  a 
qualification  that  was  a  material  departure  from  the  require- 
ments of  the  Code.^^  Where  the  affidavit  of  a  defendant  to 
his  answer  states  that  the  matters  set  forth  in  the  foregoing 
answer  are  true,  except  as  to  those  matters  therein  stat<*d  on 

27  Humphreys  v.  ^fcCall,  9  Cal.  .59;  70  Am.  Dee.  61. 

28  Patterson  v.  Ely,  19  Cal.  28;  Kirk  v.  Rhoads,  46  id.  40.3. 

2«t  Patterson  v.  Ely,  19  Cal.  28;  Kinlcaid  v.  Kipp,  1  Duer,  692;  Ross 
V.  Lonfrnniir,  ir,  Abb.  Pr.  .326;  Kelly  v.  Kelly,  1  West  Coast  Rep.  14.3. 

80  Van  Ilorne  v.  MontRomeiy,  .5  How.  Pr.  238;  Stadler  v.  Parmlee, 
10  Iowa,  23.  A  verification  omitting  the  words  "of  his  own 
knowledge,"  was  held  sufficient  in  Southworth  v.  Curtis,  6  How.  Pr. 
271;  see.  also,  Arata  v.  Tellurium,  etc.,  Co.  6.5  Cal.  340;  but  ad- 
judged fatal  in  Williams  v.  Riel,  11  How.  Pr.  37.5;  Tibballs  v.  Self- 
ridirf.  12  id.  64:  compare  People  v.  Swift,  96  Cal.  165. 

31  Wafc'froner  v.  Brown,  8  How.  Pr.  212. 


207  VERIFICATION    OF    PLEADINGS.  §g  387,  2S8 

information  or  belief,  and  as  to  those  matters  that  he  Ijelieves 
them  to  be  true,  it  is  a  sufficient  verification,  and  it  is  not  neces- 
sary that  he  should  state  in  the  affidavit  that  he  has  heard  the 
answer  read,  and  knows  the  contents  thereof.^-  Where  facts  are 
alleged  in  a  verified  complaint  which  are  presumptively  within 
the  personal  knowledge  of  the  defendant,  he  is  not  permitted  to 
deny  them  upon  information  and  belief,  but  must  answer  posi- 
tively, and  this  rule  applies  to  corporations  and  their  officers  as 
well  as  to  natural  persons;^^  but  the  rule  does  not  apply  to  the 
denial  of  the  sufficiency  of  a  recorded  claim  of  lien.^^* 

i   287.   By  one  of  several  plaintiffs  or  defendants. 

Form  No.   63. 
[Venue.] 
A.  B.,  being  duly  sworn  on  his  own  behalf,  and  on  behalf 
of  R.  S.,  one  of  the  other  defendants  therein,  says  as  follows: 

1.  I  am  one  of  the  defendants  in  the  above-entitled  action. 

2.  I  have  read  the  foregoing  answer,  and  know  the  contents 
thereof,  and  that  the  same  is  true  of  my  own  knowledge,  ex- 
cept as  to  the  matters  which  are  therein  stated  on  information 
or  [and]  belief,  and  as  to  those  matters  I  believe  it  to  be  true. 

[Jurat.]  [Signature.] 

§  288.  When  one  of  several  may  verify.  One  of  several 
plaintifl's  may  verify.^^  But  in  certain  cases  it  has  been  held 
that  where  the  action  is  Joint,  the  parties  should  unite  in  the 
verification.^'^  Thus,  in  an  action  against  husband  and  wife, 
where  her  interest  is  separate,  the  answer  must  be  verified  by 
both,  if  relied  on  as  the  answer  of  both.^^ 

32  Fleming:  v.  Wells,  05  Cal.  8.W. 

33  I.ovelaiul  v.  Garner.  74  Cal.  298. 
33a  llaKni;in  v.  "Williani.s,  88  Cal.  146. 

34  I'atterson  v.  Ely,  10  Cal.  28;  Kelley  v.  Bowman.  Transcript, 
July  18,  1801.  Tlie  verification  of  a  i)l('adinR  by  ouo  fojjlaintiff  or 
fodcfcndant  is  a  suffioient  verification  under  California  practice. 
Claiborne  v.  Casile,  98  Cal.  30. 

35  Andrews  v.  Storms,  .^»  Sandf.  OOf);  Alfn-d  v.  Watlviiis.  1  Codo  R. 
(N.  S.)  34.3;  Hull  v.  Rail,  14  How.  Pr.  30.=^;  Wcndt  v.  Pey.'-er,  14  Ilun. 
114;  Cray  v.  Kendall,  r>  Rosw.  CAV't. 

8fl  Younps  v.  Secly.  12  How.  Pr.  395;  Reed  v.  Butler,  2  Hilt.  589. 


§§  289-t?lV-J  ANALYSIS    OF    PLEADINGS.  208 

{   289.   By  two  parties,   severally. 
Form  No.   64. 

[Venue.] 

A.  B.  and  C.  D.,  the  plaintiffs  [or  defendants]  above  named, 
being  duly  sworn,  say,  each  for  himself,  as  follows: 

1  have  read  the  foregoing  complaint  [or  answer],  and  know 
the  contents  thereof,  and  the  same  is  true  of  my  own  knowl- 
edge [except  as  to  those  matters  stated  therein  on  information 
and  belief,  and  as  to  those  matters  I  believe  it  to  be  true]. 

[Jurat.]  [Signatures.] 

§   290.   By  officer  of  corporation. 

Form  No.  63. 

[Venue.] 

A.  B.,  being  duly  sworn,  says  as  follows: 

1.  I  am  an  officer  of  the company,  the  plaintiffs 

[or  defendants]  above  named,  to-wit,  the  president  thereof, 

2.  I  have  read  the  foregoing  complaint  [or  answer],  and 
know  the  contents  thereof,  and  the  same  is  true  of  my  own 
knowledge  [except  as  to  those  matters  which  are  therein  stated 
on  information  or  [and]  belief,  and  as  to  those  matters  I  believe 
it  to  be  true]. 

[Jurat.]  [Signature.] 

S  291.  Grounds  of  belief  —  sources  of  knowledge.  It  has 
been  held  that  a  verification  made  by  an  officer  of  a  corpora- 
tion need  not  state  the  grounds  of  belief  or  sources  of  knowl- 
edge.    It  is  a  verification  of  the  corporation.^^ 

i  292.  Managing  agent.  A  managing  agent  of  a  corporation 
is  an  officer  of  the  corporation  within  the  provisions  of  the  act.^^ 

37  Glaubensklee  v.  Hamburp:  &  American  Packet  Co.,  9  Abb.  Pr. 
104;  American  Insulator  Co.  v.  Bankers,  etc.,  Tel.  Co.,  2  How.  Pr. 
(X.  S.)  12<^);  compare  Van  Home  v.  Montgomery,  5  How.  Pr.  238; 
Anablf  v.  Anable,  24  id.  92.  Section  62  of  the  Colorado  Civil  Code 
makes  special  provision  as  to  the  manner  in  which  a  pleading  by  a 
corporation  is  to  be  verified,  and  the  sufficiency  of  a  verification  of 
such  a  pleading  is  to  be  tested  by  the  requirements  of  this  section, 
and  not  by  those  of  section  61,  which  provides  generally  for  the 
verification  of  r)leadings.    Tulloch  v.  Skein  Works,  17  Col.  .^)79. 

38  Glaubensklee  v.  Hamburg  &  American  Packet  Co.,  9  Abb.  Pr. 
104. 


209  VERIFICATION   OF   PLEADINGS.  §§  293-295 

§  293.  By  attorney  or  agent,  when  the  facts  are  witliiu  his 
personal  knowledge. 

Form  No.  66. 

[Venue.] 
A.  B.,  being  first  duly  sworn,  says: 

1.  I  am  the  attorney  of  the  plaintiff  in  this  action  [or  agent 
as  the  case  may  be]. 

2.  I  have  read  [or  heard  read]  the  foregoing  complaint  [or 
answer],  and  know  the  contents  thereof,  and  the  same  is  true 
of  my  own  knowledge,  except  as  to  the  matters  therein  averred 
to  be  upon  information  or  belief,  and  as  to  these  matters  I 
believe  it  to  be  true. 

3.  The  reason  why  the  verification  is  not  made  by  the  plain- 
tiff [or  defendant],  is  that  the  facts  stated  in  said  complaint 
[or  answer]  are  not  within  his  personal  knowledge. 

[Jurat.]  [Signature.] 

§  294.  The  same.  The  attorney  may  verify  a  complaint  in 
two  cases: 

1.  When  the  parties  are  absent  from  the  county  where  the 
attorney  resides,  or  from  some  cause  are  unable  to  verify  it. 

2.  When  all  the  material  allegations  of  the  petition  are  within 
his  personal  knowledge.^'-^  But  in  all  cases  of  verification  by 
attorney  or  agent,  the  reason  why  the  verification  is  not  made 
by  the  party  must  be  set  forth  in  the  affidavit.^" 

Such  A-erification  by  an  agent  must  disclose  the  nature  of  the 
agency.'*^  But  it  is  not  necessary  to  verify  by  the  agent  who 
knows  most  about  the  matter.'*^ 

§  295.  Agent  having  notes  in  possession.  Stating  that  the 
notes  were  in  possossion  of  deponent  sullicicntly  avers  that  de- 

30  Mason  v.  P.rown,  <;  How.  Pr.  4S4;  Trcadwell  v.  Fassett,  10  id. 
IM;  Wheeler  v.  Chesloy.  14  Abb.  Pr.  441. 

40Cal.  Code  Civ.  Pro.,  §  44*;;  and  seo  Pence  v.  Dnrbin,  1  Idaho, 
.5.^0.  For  examples  of  sufficient  verifications  by  attorneys,  se& 
Wheeler  v.  Chcsley.  14  \hh.  Pr.  441;  Stannard  v.  Mattiee,  7  How. 
Pr.  4;  Myers  v.  Gorritts,  1.S  Abb.  Pr.  lOG;  (lonmey  v.  Worsnland, 
.".  Purr,  nm:  Ko.ss  v.  Ponjrinnir,  24  How.  Pr.  40;  Frisk  v.  Roiselman, 
~r,  Wis.  4nO.  For  examples  of  InsufRfirnt  verifications  by  attorneys 
or  atrents,  see  Filch  v.  Rijr<>l(i\v,  .">  How.  Pr.  2.17;  Meads  v.  r.lonson, 
^?,  id.  .'?1.T:  Tibballs  v.  Selfridire.  12  id.  (54;  Sonttcr  v.  Matlicr.  14  Abb. 
Pr.  440;  Panic  of  tlic  State  of  Maine  v.  Piiel,  11  How.  Pr.  .311; 
Searle  v.  TJicliardson,  07  Iowa,  170. 

41  Boston  I.ocomotive  Works  v.  Wrighl,  1.")  How.  Pr.  2r)3. 

42Drevert  v.  .Appsert.  2  Abb.  Pr.  1G5. 

YoL.  1—27 


§§  :390,  207  analysis  of  pleadings.  210 

pouoiit  Nvas  agent  of  tlu'  plaint  ill';'''  and  auLliorized  to  verii'y 
iliL'  complaint,-*"*  whether  plaintill  was  within  the  county  or 
not.'"''  lint  in  California,  possession  of  the  written  instrument 
or  obhgation  upon  which  the  suit  is  based  does  not  authorize 
the  attorney  or  agent  to  verify  the  comphiint.  The  verification 
of  a  pleading  by  an  attorney,  which  shows  no  inability  of  the 
party  to  make  the  verilication,  must  state  directly  that  the 
facts  verilied  are  within  the  knowledge  of  the  attorney.  He 
can  not  verify  upon  information  and  belief  in  such  case,  nor 
is  it  sufficient  to  state  that  the  facts  are  more  fully  known  to 
him  than  to  the  party  he  represents.^*^  The  complaint  in  an 
action  of  unlawful  detainer  was  verified  by  an  agent  of  the 
plaintiff,  who  stated  in  the  affidavit  that  the  facts  stated  in 
the  complaint  were  within  the  knowledge  of  affiant,  and  it  was 
held  that  the  complaint  was  properly  verified.^'^ 

§   296.   By  agent  when  the  party  is  absent  from  the  county. 

Form  No.  67. 

[Venue.] 

A.  B.,  being  duly  sworn,  says  as  follows: 

1.  I  am  the  attorney  [or  one  of  the  attorneys]  of  the  plaintiff 
[or  defendant]  in  this  action. 

2.  I  have  read  the  foregoing  complaint  [or  answer]  and 
know  the  contents  thereof,  and  that  it  is  true  of  my  own 
knowledge  [except  as  to  those  matters  therein  stated  on  in- 
formation or  [and]  belief,  and  as  to  those  matters  I  believe 
it  to  be  true]. 

3.  The  reason  this  verification  is  not  made  by  the  plaintiff 

[or  defendant]  is  that  he  is  not  within  the  county  of , 

which  is  the  county  where  I  reside. 

[Jurat.]  [Signatuee.] 

§  297.  The  same  — absent  from  county.  Where  the  party  is 
not  within  the  county  where  the  attorney  resides,  a  verifica- 
tion made  hy  the  attorney  is  good,  though  he  have  no  personal 
knowledge  of  the  truth  of  the  allegations.^^     Although  it  ap- 

43  Myers  v.  Oorrits.  13  A1)b.  Tr.  106. 

44  Td. 

4-''' Whbeler  v.  Chesloy,  14  Abb.  Tr.  441. 

40  Silcox  V.  Lane:,  78  Cal.  118;  see  Beyer  v.  Wilson,  4fi  Hun,  397. 

47  Newman  v.  Bird.  HO  Cal.  372. 

4««  Hnmrihroys  v.  MrP.-il],  n  Cal.  r,n:  70  Am.  Doc.  021;  Ely  v.  Frisbie. 
17  Cal.  2.-0:  Pattorson  v.  Ely.  m  id.  28:  T.efovre  v.  Latson,  .5  Sandf. 
e-'O:  Roscoe  v.  ^fnison.  7  ITow.  Pr.  121;  Stannard  v.  Mattice,  id.  4; 


211  YEKIFICATIOX    OF    PLEADIXGS.  §§  298-300 

pears  that  the  client  has  a  resident  agent  tlirough  vvlioiu  tlie 
attorney  has  obtained  his  information.*'* 

§  298.  The  same  —  grounds  of  belief.  Where  an  attorney  or 
agent  verifies  a  complaint,  the  verification  shall  state  the 
grounds  of  belief,  and  the  reasons  why  it  was  not  made  by 
the  party .'^•^  The  grounds  of  knowledge  or  belief  need  not  be 
set  forth  if  all  the  allegations  in  the  pleading  are  made  in  the 
positive  form.^^  Under  the  California  Code  it  is  not  necessary 
that  the  attorney  or  agent  should  state  his  grounds  of  belief. 
And  when  a  verification  of  a  pleading  by  an  attorney  states 
that  the  parties  for  whom  he  is  attorney  are  absent  from  the 
county,  it  states  a  sufficient  statutory  reason  for  the  verification 
by  their  attorney,  and  no  additional  force  would  be  given  to 
the  verification  by  adding  that  it  is  for  that  reason  that  the 
verification  is  made  by  the  attorney.^^ 

S  299.  The  same  —  guardian.  The  guardian,  or  attorney  for 
the  guardian,  of  an  infant  plaintifl:  may  verify.^^  In  an  action 
by  an  infant  appearing  by  a  guardian  ad  litem,  the  complaint 
may  properly  be  verified  by  the  guardian,  and  he  need  not 
do  so  as  the  agent  or  attorney  for  the  infant,  but  may  as  the 
plaintif!.^^ 

i  300.   Where  the  absent  plaintiff  is  a  corporation. 

Form  No.   68. 
[Venue.] 
A.   B.,  being  first  duly  sworn,  says:  I  am  the  attorney  of 
the  plaintifl'  in  this  action.     I  have  read  the  foregoing  com- 
plaint, and  know  the  contents  thereof,  and  the  same  is  true 
of  my  own  knowledge  [except,  etc.]. 

The  reason  why  the  complaint  in  this  cause  is  not  verified 

Smith  V.  Rosenthal],  11  id.  442:  "Wilkin  v.  Oilman,  1.3  id.  22."");  People 
V.  Allen,  14  id.  P..34;  Drcvert  v.  Appscrt,  2  Abb.  Tr.  in.">;  Myer.s  v. 
Gerrit.s.  13  id.  lOG;  Gonrnov  v.  Wersulaud,  3  Duer,  613;  Dixwcll  v. 
Woodsworth,  2  Code  R.  1. 

4fi  Drcvert  v.  Appsert,  2  Abb.  Pr.  lOr.. 

'5'' Ore^ron  Codo,  §  79;  Boston  Locomotive  Works  v.  Wright,  15 
How.  Pr.  2,'»3:  Meads  v.  Gleason,  13  Id.  309;  People  v.  Allen,  14  id. 
334. 

Bi  Ross  V.  I.onfrniiiir,  1.".  .\l)b.  Pr.  .120. 

52  Stephens  v.  Parrisii,  S3  Cal.  501. 

B3  Tim  V.  Tliaoter,  2  Gorle  R.  3;  Anable  v.  Anablo,  ^  How.  Pr. 
92:  RnL'ers  v.  Cruder,  7  .Tohns.  557. 

04  Anable  v.  Anable,  24  How.  Pr.  92. 


§§  301-oU:;^a  analysis  of  pleadings.  212 

by  au  ollicor  of  saiil  corporation  is,  that  its  place  of  business 

iB  at   ,  in  the  state  of   ,  and  that 

none  of  its  otUcors  are  now  witliin  the  county  of , 

wliere  1  reside. 

[Jurat.]  [Signatubb.J 

$   301.   Verification  of  petition. 

Form  No.  dp. 

[Insert  venue,  introduction,  and  description  of  deponent,  and 
addj: 

I  have  read  the  foregoing  petition  subscribed  by  me,  and 
know  the  contents  thereof;  that  the  same  is  [or,  where  such 
papers  are  annexed,  and  tliat  tlie  same  and  the  accounts  and 
inventories  liereunto  annexed  arej  true  of  my  own  knowledge 
[except  as  to  the  matters  therein  stated  on  information  or 
[and]  belief,  and  as  to  those  matters  I  believe  it  to  be  true]. 
[JuEAT.]  [Signature.] 

§  302.  Verified  petition.  The  petition  for  the  perpetuation 
of  testimony  must  bo  verified  by  the  applicant  thereof.^^ 

§  302a.  Waiver  of  objection.  The  want  of  a  proper  sub- 
scription or  verification  is  a  mere  irregularity,  which  is  waived 
by  pleading  over.^^  If  the  complaint  be  verified  by  one  of 
the  plaintiff's  attorneys,  but  no  reason  why  it  is  not  verified 
by  the  parties  is  stated,  as  required  by  the  statute,  such- defect 
is  waived  when  the  defendants  make  no  objection  to  the  veri- 
fication in  the  court  below,  and  file  an  answer  duly  verified  as 
to  some  of  the  defenses,  and  not  verified  as  to  others. ^''^  x\nd 
if  a  plaintiff  goes  to  trial  without  objection  for  the  want  of  a 
verification  of  the  answer,  he  can  not  raise  the  question  after 
a  decision  is  rendered  against  him.^^ 

55  Code  Civ.  Pro.,  §  2084. 

56  State  V.  Chadwick,  10  Oreg.  423. 
67  Nichols  T.  Jones,  14  Col.  61. 

58  San  Francisco  v.  Itsell,  80  Cal.  57;  see  Lange  v.  Dammier,  119 
iDd.  567. 


PART  THIRD. 
PLEADINGS  OF  PLAINTIFF. 


CHAPTER  I. 

COMPLAINTS    IX    GEXEEAL. 

S  303.  In  general.  The  complaint,  under  the  California 
Code,  or  the  petition,  as  it  is  called  in  some  states,  is  the  first 
pleading  in  the  action,  and  the  foundation  for  all  future  pro- 
ceedings. In  modern  practice,  it  is  a  substitute  for  the  declara- 
tion at  common  law,  and  under  the  new  system,  the  plaintiff's 
allegations  showing  his  cause  of  action,  whether  at  law  or  in 
equity,  are  termed  the  complaint.^  The  Code,  as  adopted  in 
most  of  the  states  and  territories  of  the  Union,  declares  ex- 
pressly what  the  complaint  shall  contain,  which  is  as  follows: 
1.  The  title  of  the  action,  specifying  the  name  of  tlie  court 
and  the  name  of  the  county  in  which  the  action  is  brought, 
and  the  names  of  the  parties  to  the  action,  plaintilf  and  defend- 
ant; 2.  A  statement  of  the  facts  constituting  the  cause  of  action 
in  ordinary  and  concise  language;  and,  3.  A  demand  for  the 
relief  which  the  plaintiff  claims. 

S  304.  First  subdivision  of  complaint.  The  first  subdivision 
of  complaints  under  the  Code,  which  provides  what  the  com- 
plaint shall  contain,  will  be  found  under  the  title,  Formal  Parts 
of  Pleadings,  part  second,  chapter  IT,  where  the  entitling  of 
a  cause  may  be  found,  with  forms  and  authorities  in  support 
thereof. 

5  305.  Averment  of  ctaracter  and  capacity.  If  the  plaintiff 
Rue   in  a  representative  or  official    cliaracter   or   cajiaoiiy.   the 

1  Thp  allocations  of  a  fomiilaint  or  petition  (letorminc  the  oliar- 
acter  and  obloot  of  an  aotion.  :Mininj:  Co.  v.  Kirtley.  12  Col.  410; 
TTunt  r.  Mininjr  Co.,  14  id.  4.'1 :  Adams  v.  .\sli.  4(i  linn.  H"..");  School 
Coninii!*sionors  v.  Center  Township,  143  Ind.  391. 


§§  3.K)-;U18  n.KADlNOS  Ol'    PLAINTIFF.  214 

I'liaractcr  imiijt  bo  alk'goil  as  well  as  stated  in  the  title.-  It  is 
uf-ual  and  proper  in  statiui;-  the  title  to  a  complaint  in  such  cases 
to  add  to  the  name  of  the  i)arty  a  designation  stating  the 
especial  eharaeier  whieh  he  sustain.'^,  avS  "A.  B.,  Executor," 
"  C.  D.,  Sheriir."  This,  however,  will  not  dispense  with  the 
necessity  of  the  averment  of  the  character  in  whicli  lie  sues. 
Standing  alone  in  the  title  would  be  but  a  mere  dcscriptio  pcr- 
sonac.^  Such  an  avernu'nt,  and  also  an  averment  that  the  action 
is  brought  by  him  in  such  capacity,  is  sulTicient  to  sustain  a  re- 
covery in  that  capacity."*  In  general  a  plaintiff  can  not  sue  in 
two  capacities,  private  and  representative,  in  the  same  action.'* 

fi  306.  The  same  —  action  by  agent.  The  character  of  agent 
of  a  company  must  be  averred.^  But  an  agent  can  not  sue  as 
such  unless  specially  authorized  by  statute. 

§  307.  The  same  —  action  by  assignee.  The  character  of 
assignee  must  be  averred  when  plaintiff'  sues  in  that  capacity.'^ 
But  the  form  of  the  assignment,  or  the  consideration  thereof, 
need  not  be  stated.^  And  on  an  assignment  by  a  corporation, 
the  plaintiff  need  not  aver  that  the  directors  were  authorized  to 
make  it.® 

§  308.   The  same  —  action  by  company  or  partnership.    In  an 

action  where  a  member  of  a  company  is  plaintiff  or  defendant. 

2  Gould  v.  Glass.  18  Barb.  185;  Smith  v.  Levinus,  8  N.  Y.  472,  and 
other  authorities  there  cited.  ' 

3  Merritt  v.  Seaman.  6  N.  Y.  168;  Hallett  v.  narrower,  ,S.3  Barb. 
.537:  Barfield  v.  Piice,  40  Gal.  535;  Freeman  v.  Fulton  Fire  Ins.  Co., 
14  Abb.  Pi-.  407;  Murray  v.  Church.  58  N.  Y.  621;  Bonesteed  v. 
Garlinjjliouse,  (JO  Barb.  338;  and  see  Secor  v.  Pendleton,  47  Hun,  281; 
Wetmore  v.  I'orter,  92  N.  Y.  76;  Buyce  v.  Buyce,  48  Hun,  433. 

4  p'owler  V.  We.sten-elt,  40  Barb.  373;  Apcate  v.  King,  17  Abb.  Pr. 
59.  distinguishing  upon  tliis  point  the  decision  in  Gould  v.  Glass, 
19  Barb.  179. 

B  Yates  V.  Kimmol,  5  Mo.  87.  See  this  sul).iect  further  considered 
post,  P'orms  of  Conu)laints  —  By  and  against  particular  persons, 
individually  and  in  a  representative  and  official  capacity. 

flToimie  v.  Dean,  1  Wasli.  Tor.  46. 

7  Buttei-field  v.  M.ieoniber,  22  How.  Pr.  150;  Wheelock  v.  Lee,  15 
Abb.  (N.  S.)  24;  see  Murdock  v.  Broolts.  .38  Cal.  596;  De  Nobele  v. 
Lee,  61  How.  Pr.  272;  King  v.  Felton,  63  Cal.  66. 

«rowl<r  v.  New  Yorlv  Indem.  Ins.  Co.,  23  Barb.  151;  Morange  v. 
Mudge.  6  Abb.  Pr.  243. 

'•>  Nelsfin  v.  Eaton.  16  A]il>.  Pr.  113;  see  post,  Forms  of  Complaints- 
Art  Ions  liy  Assignees. 


215  COMPLAINTS   IN    GENEKAL.  §  309 

membership  must  be  averred.^"  And  the  jurisdiction  and  a 
cause  of  action  must  be  shown.^^  And  in  the  state  of  New  York, 
where  such  actions  will  lie,  in  actions  by  or  against  joint-stock 
companies,  the  complaint  must  allege  that  the  company  is  a 
joint-stock  company  or  association,  consisting  of  more  than 
seven  shareholders  or  associates.^^  But  in  an  action  in  which 
the  defendants  were  named  Hull  &  Co.,  the  "  &  Co."  were  con- 
sidered surplusage.^^  A  complaint  which  contains  no  other 
designation  of  the  party  plaintiff  than  the  name  of  a  copartner- 
ship firm  is  deemed  defective. ^^ 

§  309.  The  same  —  action  by  corporation.  In  New  York, 
where  the  plaintiff  sues  by  an  appropriate  corporate  name,  it  is 
not  necessary  to  aver  expressly  that  the  plaintiff  is  a  corpora- 
tion; in  such  a  case  there  is  an  implied  averment  to  that  effect.^' 
This  holding,  however,  was  upon  a  demurrer  assigning  as  the 
grounds  thereof:  1.  That  it  appeared  from  the  pleading  that 
the  plaintiff  had  not  legal  capacity  to  sue;  and,  2.  That  it  did 
not  contain  facts  constituting  a  cause  of  action.  The  general 
rule  undoubtedly  is,  that  a  corporation  plaintiff  mast  aver  that 
it  is  a  corporation,  the  exception  being  where  the  defendant  is 
estopped  from  denying  the  incorporation,  as  by  having  con- 
tracted ^nth  it  by  its  corporate  name.^*^     Where  plaintiff  suing 

10  Tolmie  v.  Dean,  1  Wash.  Ter.  40;  seo  Express  Co.  v.  Harris, 
120  Ind.  73;  16  Am.  St.  Rep.  315;  Insurance  Co.  v.  Floss,  r,7  Md. 
403;  1  Am.  St.  Rep.  398.  Suit  may  be  ])rou.cht  in  tlio  name  of  a 
partnership  which  has  been  dissolved,  describing  it  as  a  late  i)art- 
nership.  and  setting  out  the  names  of  tlie  late  partners.  Tompkins 
T.  Levy.  87  Ala.  2(i3;  13  Am.  St.  Rep.  31. 

11  Tolmie  v.  Denii,  1  Wash.  Ter.  40. 

12  Tiffany  v.  Williams,  10  Abb.  Tr.  204. 
iSMullilien  v.  Hull,  f)  Cal.  24.".. 

14  Oilman  v.  Cosfrrove,  22  Cal.  .''.r.C;  Walker  v.  Parkins,  9  Jur. 
flfi.");  14  Law  .Tour.  R.  214,  Q.  R.;  1  New  I'r.  Cas.  199;  2  I).  &  L.  982; 
see  post.  Forms  of  Complaint:  Actions  by  Corporations  and 
Partners. 

m  T^nlon  M.  Ins.  Co.  v.  Osgood,  1  iMier.  707;  The  Rank  of  Genesee 
V.  The  Palcliin  Hank,  13  N.  Y.  313;  Phoeni.x  Rank  of  New  York  v. 
Donnell.  41  Parb.  .".71. 

If' Connect icui  Pank  v.  Smitli.  17  How.  Pr.  4S7.  The  statute 
now  e.xpressly  iin)vides  tliat  tlie  coniirlaint  in  an  action  by  or  against 
a  corjioratifni  nuist  aver  that  the  i>lainliff  or  defendant,  as  the  case 
may  1)0.  is  a  coriioralion.  N.  V.  (V)de  Civ.  Pro..  S  177."»;  and  se<» 
Fox  V.  Erie,  etc.,  Co.,  93  N.  V.  .'1;  Eraser  v.  Pi-ovident  Assoc,  8 
Misc.  7;  Noye  Manufacturing  Co.  v.  Raymond,  8  id.  353. 


§§31t».  oil  I'LKAlUNciS  OF    I'LAINTIFF.  1:^16 

as  siiporvisi)!',  dsoerihiHl  liiinsi'lt'  in  the  title  oi'  the  complaint  as 
suporvisor  of  North  Hempstead,  and  commenced  it,  "  The  com- 
phiint  of  tlie  plaintiir  above  named,  as  supervisor  as  aforesaid, 
shi»\vs,"'  etc.,  it  was  held  on  demurrer,  a  sullicient  statement  of 
the  capacity  in  which  he  suetl.^" 

The  act  of  incorporation  may  be  pleaded  by  reciting  the  title 
of  tlie  act  and  the  date  of  its  passage.^^  But  it  must  be  set  forth 
with  accuracy.^"  But  the  short  mode  of  pleading  permitted  by 
this  statute  is  not  intended  to  relieve  corporations  from  proving 
their  existence.^'  Where  the  original  act  of  plaintiff's  incorpora- 
tion is  referred  to  in  the  complaint,  a  vague  reference  to  other 
general  statutes  affecting  it  does  not  render  the  complaint  de- 
murrable.^^ 

§  310.  The  same  —  permission  to  sue.  There  are  cases  in 
which  l>y  reason  of  some  special  character,  a  party  can  not  sue 
or  be  sued  except  by  permission  of  the  court.  In  such  cases, 
the  obtaining  permission  to  sue  should  be  alleged  stating  how, 
when,  and  from  whom  obtained,  as  in  case  of  a  receiver;—  or  of 
a  guardian  of  an  haliitual  drunkard;^^  or  of  a  lunatic.^^ 

§  311.   Second    subdivision  —  statement    of    cause    of    action. 

The  complaint  should  state  expressly  and  in  direct  terms  the 
facts  constituting  the  cause  of  action,  and  leave  no  essential  fact 
in  doubt,  or  to  l)o  inferred  or  deduced  by  argument  from  the 
other  facts  stated,  as  inference,  argument,  or  hypothesis  can  not 
be  tolerated  in  a  pleading.-^     A  cause  of  action  being  the  right 

17  Smith  V.  Levinns,  8  N.  Y.  472. 

iR  ral.  Code  Civ.  Tro..  §  459;  IT.  S.  Bank  v.  Haskins,  1  Johns.  Cas. 
132. 
1!^  T'nion  Bank  v.  Dewey,  1  Sandf.  509. 

20  Onondaga  County  Bank  v.  Carr,  17  Wend.  443;  compare  Bank 
of  Waterville  v.  Beltser,  13  How.  Pr.  270;  Bank  of  Genesee  v. 
Patchin  Bank.  13  N.  Y.  (3  Kern.)  309. 

21  Run  Mutual  Ins.  Co.  v.  Dwiffht,  1  Hilt.  50;  see  post.  Forms  of 
Comitlaint  —  Actions  by  Corporations. 

22  Anpol  V.  Smith.  D  Yes.  .^^5;  3  Bro.  C.  Cas.  88;  IMerritt  v.  Lyons. 
10  Wend.  410;  Chantauque  County  Bank  v.  Risloy,  19  N.  Y.  37G. 

23  Hall  V.  Taylor,  8  How.  Pr.  428. 

24  Williams  v.  Cameron.  20  Barb.  172;  Graham  v.  Scripture.  2G 
How.  Pr.  .^)01 ;  see  post,  Forms  of  Complaints  —  Actions  by  Re- 
ceivers and  Guarriians. 

2-'!  .Joseph  V.  Holt,  37  Cal.  2.50;  citing  Grecm  v.  Palmer.  15  id.  411; 
7R  Am.  Dec.  492.  The  plaintiff  is  retiuirerl  to  state  his  cansp  of 
action  with  sufficient  particularity  to  inform  the  defendant  of  its 


217  COMPLAINTS   IN    GENERAL.  §  312 

a  person  has  to  institute  and  carry  through  a  proceeding,^  and 
as  the  object  of  the  complaint  is  to  present  the  facts  upon  which 
the  action  is  founded  in  ordinary  and  concise  language,^  the 
manner  of  the  statement  of  those  facts  becomes  a  matter  of  im- 
portance, not  only  in  reference  to  the  facts  which  should  be 
alleged,  but  of  such  facts  as  need  not  be  alleged  and  which 
ought  to  be  omitted  from  the  complaint. 

It  is  not  in  general  necessary  to  make  it  appear  on  the  face  of 
a  complaint  that  the  court  has  jurisdiction  of  the  person  or 
of  the  subject-matter  of  the  action.^^  It  is,  however,  held  that 
in  an  action  against  a  foreign  corporation,  the  complaint  must 
allege  that  the  plaintiff  is  a  resident,  or  that  the  cause  of  action 
was,  or  the  subject  of  it  is  situated  in  this  state. ^ 

Allegations  in  a  complaint  must  be  consistent  with  each  other, 
and  such  as  are  not  consistent,  as  well  as  such  allegations  as  are 
absurd,  and  the  truth  of  which  is  impossible,  may  be  regarded 
as  surplusage. ^^  An  averment  at  the  end  of  a  complaint  that  the 
defendant  owes  the  plaintiff  is  a  mere  conclusion  of  law  and  is 
not  admitted  by  demurrer. ^^  The  complaint  need  not  be  dated, 
nor  need  it  state  the  time  when  the  action  was  commenced.'''^ 
But  the  clerk  shall  indorse  on  the  complaint  the  day,  month,  and 
year  the  same  is  filed. ^^ 

§  312.  What  facts  are  to  be  stated.  Those  facts,  and  those 
only,  should  be  stated,  which  constitute  the  cause  of  action;^* 
and  the  kind  of  relief  should  be  explicitly  demand ed.^-"^ 

real  charaotor.  Iron  Co.  v.  Worthinston,  2  Wash.  Ter.  472.  And  he 
must  rocover,  If  at  all.  upon  the  cause  of  action  as  set  out  in  his 
complaint.  Burlie  v.  Levy.  HS  Cal.  32;  Gregorj^  v.  Railroad  Co., 
112  Ind.  38.5;  Easterly  v.  Barber,  GO  IS[.  Y.  440;  see  §  205,  ante. 

2fl  Affyer  V.  Van  Collem,  28  Barb.  231. 

27  Cal.  Code  Civ.  Pro..  §  42<!;  N.  Y.  Code  Civ.  Vvo.,  §  481. 

2«  KoenlK  V.  Xott,  8  Abb.  Pr.  384;  Spencer  v.  Rogers  Locomotive 
Worlis.  17  id.  110. 

»  House  V.  Cooper,  in  IIow.  Tr.  2ft2. 

30  Sacramento  County  v.  Bird.  31  Cal.  fiG. 

■!i  Millard  v.  Baldwin.  3  Cray,  484;  Coddinp:  v.  Mansfield,  7  Id. 
272;  13  Id.  302. 

32  >rnynard  v.  Tnlcott,  11   Barb.  .''.flO. 

3T  Cal.  Code,  §  40n;  and  Codes  of  Nevada.  Idaho.  Arizona,  e^tc. 

«<  Creen  v.  Palmer.  15  Cnl.  413;  70  .\m.  Pec.  4!>2;  Wilson  v. 
Cleaveland,  30C!il.  1!)'„';  Bascouillat  v.  T{rnf,  :',2  id.  4'.";  Buildinu'ton  v. 
Pnvlfl.  0  TTow.  Pr.  402. 

BSBankston  v.  Karris,  20  M(..  17.".;  Biddle  v.  Boyce.  13  id.  .''>32. 

28 


§  3r-3  I'LEADlXliS  01'    I'LAlNTlir.  218 

All  the  material  I'aets  out  of  wliicli  the  cause  of  action  arose 
ought  to  be  stated,  ami  none  others;^''  and  they  should  be  stated 
in  an  intelligible  and  issuable  form,  capable  of  trial;^'^  but  a  de- 
fective allegation  of  a  fact  may  be  cured  by  default  or  verdict.^^ 
A  statement  in  a  complaint  that  the  contract  sued  on  was  made 
payable  in  a  specific  kind  of  money,  is  an  allegation  of  a  material 
fact.3» 

It  is  laid  down  as  a  rule  that  the  complaint  must  contain  all 
the  facts  which,  upon  a  general  denial,  the  plaintiff  will  be 
bound  to  prove  in  the  first  instance,  to  protect  himself  from  a 
nonsuit,  and  show  himself  entitled  to  a  judgment.'*"  And  this 
statement  must  be  made  without  unnecessary  repetition.'*^ 

The  statute  in  this  respect  is  only  declaratory  of  the  common 
law,^^  and  is  applicable  as  well  to  every  description  of  pleading 
under  the  ('ode,  whether  in  law  or  equity,  all  distinctions  in  the 
form  of  actions  having  been  abolished.'*^  This  rule  governs  all 
cases  of  pleading,  legal  and  equitable.'*^ 

soHentsch  v.  Porter,  10  Cal.  555;  Hicks  v.  Murray,  43  id.  522; 
Bracket  v.  Wilkinson.  13  How.  Pr.  102;  Elwood  v.  Gardner,  45  N. 
Y.  349;  Van  Nest  v.  Talma pe.  17  Abb.  Pr.  99;  Wade  v.  Rusher,  4 
Bosw.  537;  Smitli  v.  Foster,  5  Oreg.  44;  Holladay  v.  Elliott,  3  id. 
340;  First  Nat.  Bank  v.  Lau.cblin,  4  N.  Dak.  391. 

87  Boyce  v.  Brown,  7  Barb.  81;  Los  Angeles  v.  Signoret,  50  Cal. 
298. 

38  Russell  v.  Mixer,  42  Cal.  475;  see,  also,  Mercier  v.  Lewis,  39 
id.  53.1 ;  and  Reynolds  v.  Hosmer,  45  id.  616.  If  a  complaint  fails 
to  state  facts  sufficient  to  constitute  a  cause  of  action,  advantage 
may  be  taken  of  the  defect  by  demurrer,  by  motion  for  judgment 
on  the  pleadings,  or  upon  motion  for  a  new  trial.  Kelley  v.  Kriess, 
68  Cal.  210. 

89  Wallace  v.  Eldredge,  27  Cal.  498. 

40  1  Van  Santv.  215;  Bristol  v.  The  Rensselaer,  etc.,  Co.,  9  Barb. 
1.58;  Tallman  v.  Green,  3  Sandf.  437;  Garvey  v.  Fowler,  4  id.  665; 
4  How.  Pr.  98;  Paff  v.  Kinney,  5  id.  390;  Turner  v.  Comstock,  1 
Code  R.  102;  Tucker  v.  Rushton,  2  id.  .59;  Russell  v.  Clapp,  3  id.  64; 
Mann  v.  Morewood,  5  Sandf.  564;  Lienan  v.  Lincoln,  2  Duer,  670; 
Green  v.  Palmer,  15  Cal.  414;  70  Am.  Dec.  492;  Northern  Railway 
Co.  v.  .Jordan,  87  Cal.  23. 

41  Lawrence  v.  Miller,  2  N.  Y.  253;  N.  Y.  Code,  §  142;  Laws  of 
Oregon.  §  65;  Wash.  Ter.,  §  .53. 

42  Gladwin  v.  Steb])ins.  2  Cal.  103. 

43  Piercy  v.  Sabln,  10  Cal.  27;  70  Am.  Dec.  692;  Cordier  v.  Schloss,  I 
12  Cal.  147.  ^ 

44  Goodwin  v.  Hammond,  13  Cal.  109;  73  Am.  Dec.  574;  Riddle 
V.  Baker,  13  Cal.  302;  Payne  v.  Treadwell,  16  id.  243. 


219  COMPLAINTS   IX    GENERAL.  §   313 

A  complaint  is  materially  defective  if,  to  lay  the  foundation 
of  a  recovery,  the  proof  must  go  further  than  the  allegations  it 
contains.'"^  It  must  be  so  framed  "  as  to  raise  upon  its  face  the 
question  whether,  admitting  the  facts  stated  to  be  true,  the 
plaintiff  is  entitled  to  judgment,  instead  of  leaving  that  question 
to  be  raised  or  determined  upon  the  trial."^®  For  where  a  com- 
plaint shows  no  legal  cause  of  action  on  its  face,  a  judgment  by 
default  can  no  more  be  taken  than  it  can  be  over  a  general 
demurrer.*^ 

If  the  complaint  contains  one  good  count,  though  the  find- 
ings of  fact  are  defective,  it  will  be  sufficient;**  since  a  plaintiff 
can  only  recover  for  such  causes  of  action  as  are  stated  in  his 
complaint,*®  he  must  show  a  good  cause  of  action,^^  and  facts 
sufficient  to  constitute  it.^^ 

§  313.  Allegations  on  information  and  belief.  Allegations 
made  upon  information  and  belief  should  be  distinguished  by 
the  phrase,  "alleges  upon  information  and  belief."  The  de- 
cisions on  this  point  have  been  numerous  and  irreconcilable.^^ 
Section  524  of  the  new  Code  of  Procedure  in  New  York  settles 
the  question  in  that  state.  It  provides:  "The  allegations  or 
denials  in  a  verified  pleading  must,  in  form,  be  stated  to  be 
made  by  the  party  pleading.  Unless  they  are  therein  stated  to 
be  made  upon  the  information  and  belief  of  the  party,  they 
must  be  regarded,  for  all  purposes,  including  a  criminal  prosecu- 

46  Stanley  v.  Whipple,  2  McLean.  35. 

4«  1  Van  Santv.  2ir>.  Every  complaint  in  an  action  must  be 
founded  upon  a  theory  under  wliich  the  plaintiff  is  entitled  to 
recover,  and  must  state  all  the  facts  essential  to  supjiort  such 
theory,  and,  falling  to  do  so,  it  is  radically  defective,  and  does  not 
state  facts  suflicient  to  constitute  a  cause  of  action.  Ruena  Vista, 
etc.,  Co.  V.  Tuoliy,  KfJ  Cal.  243;  and  see  Powder  Co.  v.  Ilildebrand, 
187  Ind.  462. 

4TAbbe  V.  Marr,  14  Cal.  211. 

♦«  T.ucae  v.  San  Francisco,  2H  C.-il.  .^iftl ;  Tcrrill  v.  Terrill.  100  id. 
413;  Ilayden  v.  Sample.  10  Mo.  21.''>;  State  v.  Campbell,  id.  724; 
Marshall  v.  HouJdin.  s  id.  244;  se<>  S  .''.071,  post. 

49  Benedict  v.  Hray,  2  Cnl.  2.'".n;  Smitli  v.  Smith,  .3H  N.  Y.  Supp. 
.%51;  Bowcn  v.  Wel>ster,  .3S  id.  017;  Sliaw  v.  riemiuK,  174  Tenn.  St. 
r>2;  Mayer  v.  Ver  Bryck.  40  Neb.  221. 

MBussell  V.    Ford.  2  Cal.  SO;  Little  V.  Mercer,  9  Mo.  210. 

PI  Summers  v.  Farish,  10  Cal.  347;  Macuire  v.  Vice,  20  Mo.  420. 

52  Bee  Truscott  v.  Dole,  7  How.  Fr.  221;  St.  ,Toliii  v.  Beers,  24  Id. 
377. 


g  313  PLEADINGS  OF  PLAINTIFF.  220 

tiou,  as  having  been  nuido  upon  the  knowledgo  of  the  person 
vohl'ving  the  pleailing.  An  allegation  that  the  i)arty  has  not 
sufficient  knowledge  or  information  to  form  a  heliei'  with  re- 
spect to  a  matter,  must,  for  the  same  pur})oses,  be  regarded  as 
an  allegation  that  the  person  verifying  the  pleading  has  not  such 
knowledge  or  information."  The  dilference  in  the  authorities 
upon  this  question  has  grown  out  of  a  very  literal  application  of 
the  rule  that  all  facts  must  be  positively  alleged.  When  plead- 
ings were  not  required  to  be  verified,  the  rule  was  of  easy  applica- 
tion. But  this  rule  related  to  the  form  of  the  allegation  and  not 
to  the  knowledge  of  the  party.  It  is  evident  that  a  fact  may  be 
averred  positively,  so  far  as  the  form  of  the  allega^tion  is  con- 
cerned, and  yet  the  truth  of  the  allegation  rests  upon  informa- 
tion and  belief.  A  failure  to  distinguish  in  the  pleading  be- 
tween facts  stated  on  personal  knowledge  and  those  stated  on 
information  and  belief  must  of  necessity  defeat  to  a  great  extent 
the  object  to  be  attained  by  verification,  unless  the  person  verify- 
ing shall  be  held,  to  have  made  every  allegation  upon  personal 
knowledge. 

The  propriety  and  sufficiency  of  allegations  upon  information 
and  belief,  otherwise  unobjectionable,  have  not  been  questioned 
in  California,  unless  in  injunction  cases.^^  Facts  not  pre- 
sumptively within  the  knowledge  of  the  pleader  may  be  alleged 
upon  information  and  belief. '^^  And  the  objection  that  the 
averments  of  a  complaint  are  made  on  information  and  belief  is 
not  a  ground  of  demurrer  either  general  or  special.  The  objec- 
tion can  be  raised  by  motion  only.^^  A  direct  allegation  of  a 
fact  may  be  expressed  to  be  made  "  upon  information  and  be- 
lief," and  is  not  on  that  account  l)ad  on  demurrer.  But,  suffi- 
cient facts  having  been  stated  as  existing,  the  allegation  of  the 
pleader  that  he  states  them  "upon  information  and  belief."  will 
be  regarded  as  surplusage.^^  Under  the  Code  of  Procedure  of 
the  state  of  Washington,  section  203,  covering  the  verification 
of  pleadings,  a  complaint  asking  for  a  temporary  injunction  veri- 

63  Pre  Patterson  v.  Ely.  19  Cal.  30.  8.'">.  40;  Kirk  v.  Tthoads,  46 
Id.  4/(3;  New  York  Marhlerl  Iron  Works  v.  Smith.  4  Duer,  362;  Roby 
V.  Ilallock,  5.^>  How.  Pr.  412;  !">  Abb.  N.  O.  80;  Bennett  v.  Manufac- 
turinp  Co.,  110  N.  Y,  150;  Sheldon  v.  Sabin.  12  Daly.  84. 

54  Thar-kara  v.  Reid,  1  Utiih.  2.38;  .Tones  v.  Pearl  Mining  Co.,  20 
Col.  417. 

Mid.;  Carpenter  v.  Smith,  20  Col.  39. 

MWarburton  v.  Ralph,  9  Wash.  St.  537. 


221  COMPLAINTS   IX    GENERAL.  §  314 

fied  upon  the  belief  of  the  apphcant  is  sufficient.^^  A  denial 
upon  information  and  belief  is  authorized  by  the  Code  of  Xorth 
Dakota  in  a  case  where  the  party  making  the  denial  has  informa- 
tion inducing  a  belief  that  the  facts  sought  to  be  denied  are 
untrue,  but  has  not  absolute  knowledge  that  they  are  untrue. 
In  such  case  a  general  denial,  or  a  denial  of  knowledge  or 
information  sufficient  to  form  a  belief,  would  be  improper.^* 

§  314.  Joinder  of  causes  of  action.  The  Codes  of  all  the 
states  make  provisions  for  the  joinder  of  causes  of  action.  Such 
provisions  differ  in  their  details.  In  California,  and  in  most  of 
the  other  Code  states,  it  is  provided  that  the  plaintiff  may  unite 
several  causes  of  action  in  the  same  complaint,  where  they  all 
arise  out  of:  (1)  Contracts,  expressed  or  implied;  (2)  Claims  to 
recover  specific  real  property,  with  or  without  damages  for  the 
withholding  thereof,  or  for  waste  committed  thereon,  and  the 
rents  and  profits  of  the  same;  (3)  Claims  to  recover  specific  per- 
sonal property,  with  or  without  damages  for  the  withholding 
thereof;  (4)  Claims  against  a  trustee  by  virtue  of  a  contract,  or 
by  operation  of  law;  (5)  Injuries  to  character;  (0)  Injuries  to 
person;  (7)  Injuries  to  property.  The  causes  of  action  so  united 
must  all  belong  to  one  only  of  these  classes,  and  must  affect  all 
the  parties  to  the  action,  and  not  require  different  places  of  trial, 
and  must  be  separately  stated.  But  an  action  for  malicious 
arrest  and  prosecution,  or  either  of  them,  may  be  united  with 
an  action  for  either  an  injury  to  character  or  to  the  person.^^ 
In  construing  this  provision  of  the  Code,  it  has  been  held  that 
causes  of  action  arising  out  of  the  same  transaction,  against  the 
same  parties,  where  all  the  defendants  are  interested  in  the 
same  claim  of  right,  and  where  the  relief  asked  for  in  relation  to 
each  is  of  the  same  general  character,  may  in  general  be  united.^ 
Thus,  an  action  for  damages  and  also  for  a  penalty,  in  a  suit 
agaipst  a  sheriff  for  a  failure  to  execute  process,  may  be  united."^ 

B7  Oady  V.  Case,  11  Wash.  St.  124.  An  aifldavit  sworn  to  upon 
the  belief  of  a  party  is  held  eciuivalent  to  swearing  that  it  Is  true. 
Thayer  v.  BurKer,  MX)  Ind.  2C,2\  Champ  v.  Kendrlck,  130  Id.  549. 

c«  ItuBsell  V.  Aniundson,  4  N.  Dak.  112. 

B8  Cal.  Code  Civ.  Pro..  5  427. 

80  Varirk  v.  Smith,  .'>  Paige  Ch.  137;  2S  Am.  Deo.  417;  Jones  v. 
Steamship  "Cortes,"  17  Cal.  4S7;  7(1  Am.  Dec.  142;  Stfx-k-Crowers' 
Bank  v.  Newton,  13  Col.  24.5;  First  Nat.  Bank  v.  lluiumel,  14  id. 
269. 

•1  Pearkea  v.  Freer,  9  Cal.  642. 


§  314  PLEADINGS  OF   PLAINTIFF.  222 

So  a  complaint  in  ejoctnient  may  be  for  two  separate  and  dis- 
tinct pieces  of  land,  but  the  two  causes  of  action  must  be  sepa- 
rately stated,  and  affect  all  the  parties  to  tho  action,  and  not 
require  ditl'erent  places  of  trial.'"'-  And  under  our  system  a 
cause  of  action  in  tort  may  be  united  with  a  cause  of  action  on 
contract,  if  the  two  causes  of  action  arise  out  of  the  same  traus- 
action."^  Under  the  Utah  statute  (Comp.  Laws,  1888,  §  2349), 
providing  for  the  joinder  of  several  causes  of  action  arising  out 
of  injuries  to  property,  tho  plaintiff  may  unite  two  causes  of 
action,  each  for  the  killing  of  the  same  horse,  charged  in  differ- 
ent ways.^  So,  a  count  in  indebitatus  assumpsit,  framed  sub- 
stantially aa  required  at  common  law,  is  now  held  to  be  a 
sufficient  compliance  with  the  Code  mandate  as  to  allegations  of 
fact.*"*  And  among  causes  of  action  which  may  be  properly 
joined  are  the  following:  A  cause  of  action  for  the  cancellation 
of  a  deed  to  real  property  with  an  action  for  the  possession  of 
the  same  property.^  A  paragraph  of  complaint  seeking  to  re- 
cover the  possession  of  real  estate  may  be  joined  with  another 
claiming  damages  for  its  detention ;^^  or  a  paragraph  of  com- 
plaint to  recover  damages  for  conversion  may  be  joined  wdth  a 
paragraph  to  recover  possession  of  the  same  property;^^  trespass 
to  real  estate  by  vmdermining  a  house,  and  case  for  injury  to  the 
personal  property  in  it,  are  joinalile  if  the  proof  is  the  same  for 
both;®*  unpaid  subscriptions  and  tlie  stockholders'  individual 
liability  may  both  be  pursued  by  a  judgment  creditor  in  the  same 
action  ;'^^  a  cause  of  action  for  damages  for  several  breaches  of 
the  terms  of  an  express  contract,  and  a  cause  of  action  on  a 
quantinn  meruit  for  work  and  labor  performed  and  materials  fur- 
nished, may  be  united  in  the  same  complaint;'^^  so,  a  cause  of 

62  Boles  v.  Cohen,  15  Gal.  151. 

63  .Tones  v.  S'teainship  "Cortes,"  17  Cal.  487;  Stui-ges  v.  Burton, 
8  Ohio  St.  215;  Mackenzie  v.  Hatton,  26  N.  Y.  Supp.  873;  6  Misc.  153. 

64  Jensen  v.  Railway  Co.,  6  Utah,  253. 

66  Gale  V.  James,  11  Col.  540;  Ball  v.  Fulton  County,  31  Ark.  379; 
MfManus  v.  :Mininj2:  Co.,  4  Nev.  15;  Campbell  v.  Shiland,  14  Col. 
491. 

66  Stock-Growers'    Bank   v.    Newton,    13    Col.   245. 

6T  Lantrsdale  v.  Woolen.  120  Ind.  IG;  Locke  v.  Peters,  65  Cal.  161, 
162;  FurlonK  v.  Cooney,  72  id.  322. 

6«  Baals  V.  Stewart,  109  Ind.  371. 

69  Henshaw  v.  Noble,  7  Ohio  St.  226. 

70  Warner  v.  Callender.  20  Ohio  St.  190. 

71  Remy  v.  Olds.  RS  Cal.  537;  and  see  Cowan  v.  Abbott,  92  id.  100; 
Waggy  V.  Scott,  29  Greg.  386. 


223  COMPLAINTS   IN    GENERAL.  §  314a 

action  for  work  and  labor  performed  by  the  plaintiff  for  the 
defendant,  and  a  cause  of  action  for  work  and  labor  performed 
for  the  defendant  by  an  assignor  of  the  plaintiff,  may  be  united 
in  the  same  complaint;"-  a  cause  of  action  to  recover  back  money 
paid  by  mistake  of  fact  rests  upon  an  implied  contract,  and  may 
be  joined  with  a  cause  of  action  upon  an  express  contract  for  the 
recovery  of  rent  upon  premises  leased;"^  an  injunction,  and  in- 
cidentally thereto  an  account  of  damages,  may  be  sought  in  the 
same  action;"^*  and  where  a  purchaser  at  execution  sale  brought 
an  action  to  set  aside  certain  conveyances  alleged  to  have  been 
fraudulently  made  by  the  judgment  debtor,  and  to  recover  pos- 
session of  the  property,  there  was  held  to  be  no  misjoinder  of 
causes  of  action.'' 

§  314a.  Separate  statement  of  cause  of  action.  Each  cause  of 
action  should  be  separately  and  distinctly  stated.'"  And  each 
separate  and  distinct  proposition  of  each  cause  of  action  should 
be  separately  set  forth,  and  logical  order  should  be  observed 
in  the  statement  of  the  premises,  leaving  the  conclusions  of 
law  deduced  therefrom  to  be  drawn  by  the  court.  The  better 
practice  is  to  number  each  cause  of  action,  and  each  proposi- 
tion of  each  cause  of  action.'^'''  The  causes  of  action  required 
to  be  separately  stated  are  such  as  l^y  law  entitle  the  plaintiff 
to  separate  actions,  and  each  of  which  would  be  a  perfect  cause 
of  action  in  itself.'^^  And  such  statement  should  begin  with 
appropriate  words  to  designate  it  as  such.'^     Each  statement 

72  Fraser  v.  Oakdale,  etc.,  Lumber  Co..  73  Cal.  187. 

73  Olnistead  v.  Dauphiny,  104  Cal.  035. 

74  Converse  v.  Hawkins,  31  Ohio  St.  209. 
7fs  Pfister  V.  Dascey,  Gr>  Cal.  403. 

76  Boles  V.  Cohen,  15  Cal.  151;  People  v.  Railroad  Co..  83  id.  393; 
Sturpes  V.  Burton,  8  Oliio  St.  215;  X.  Y.  Code  Civ.  Pro.,  §  483; 
72  Am.  Dec.  5.S2;  Eaton  v.  Orejron,  etc.,  Xavij^atiau  Co.,  19  Oreg. 
391;  Henderson  v.  Dickey,  .50  Mo.  l(;i.  A  complaint  Avhich  fails 
to  keep  separate  the  different  grounds  of  action,  but  confuses  and 
blends  them  in  one  statement,  is  open  to  the  objection  of  duplicity. 
But  duplicity  does  not  con.sist  in  the  union  of  several  facts,  con- 
stituting together  but  a  single  cause  of  action.  Hough  v.  Hough, 
25  Oreg.  218;  Ilarker  v.  Brink.  24  N.  J.  L.  333. 

7"  Bene<lict  v.  Seymour,  f.  II(>\v.  I'r.  208;  Blancliard  v.  Strait.  8 
Id.  83. 

7fi  Sturgos  V.   Burton,  8  Oliio  St.  215;  72  Am.   Dec.  582. 

79  Benedict  v.  Seymour,  0  How.  Pr,  298;  Llppincott  v.  Goodwin, 
Id.  242. 


$  ;U5  PLEADINGS  OF  PLAINTIFF.  221 

c 

mu^i  bo  oomploto  in  itself,  or  luusi  be  made  so  by  exjDrcss 
referoiu'o  to  other  parts  of  tlio  })leadings.®^  That  reference 
may  bo  nuulo  to  other  allegations  was  the  rule  at  eonnnon 
hiw .'''  A  ooniplaint  seeking  to  recover  on  two  causes  of  action 
must  show  how  much  is  chie  on  each,  in  a  word,  each  cause 
of  action  must  be  clearly  and  explicitly  stated,  and  must  be 
perfect  in  itself.^" 

§  315.  Causes  of  action  which  can  not  be  joined.  Causes  of 
action  arising  ujuler  diffcroit  classes,  as  spocitied  in  the  pro- 
visions of  the  Code  quoted  in  the  preceding  section,  can  not 
be  united  in  one  action.  So,  inconsistent  causes  of  action  can 
not  be  united  in  the  same  complaint.**^  Nor  can  the  pleader 
under  the  present  system,  any  more  than  under  the  old,  ask 
for  two  or  more  distinct  kinds  of  relief,  inconsistent  with  or 
repugnant  to  each  other.^**  Thus,  an  action  in  ejectment  for 
breach  of  condition,  with  damages  for  breach  of  covenant,  is 

so  Watson  v.  S.  F.  &  H.  B.  R.  R.  Co.,  41  CaL  IT:  Ritchie  v. 
Garrison,  10  Abb.  Pr.  246;  First  Nat.  Bank  v.  Laughliu,  4  N.  Dak. 
391,  40G;  Manufacturing  Co.  v.  Beecher,  55  How.  Pr.  193.  In 
Indiana  practice,  omitted  or  defective  allegations  of  fact  in  one 
paragraph  of  a  complaint  can  not  be  supplied  or  cured  by  reference 
to  another  paragraph.    Farris  v.  .Tones,  112  Ind.  498. 

81  Freeland  v.  McCullough,  1  Deu.  414;  Crookshauk  v.  Gray,  20 
Johns.  344;  Griswold  v.  National  Ins.  Co.,  3  Cow.  96;  Loomis  v. 
Swick,  3  Wend.  205;  Porter  v.  Cummings,  7  id.  172.  This  practice 
has  bocoine  quite  prevalent  in  California,  and  where  the  reference 
to  a  preceding  count  is  deliuite  and  certain,  there  seems  no  serious 
objection  to  it.  Bidwell  v.  Babcoek,  87  Cal.  29;  Green  v.  Clifford, 
94  id.  49;  Treweek  v.  Howard,  105  id.  434,  442;  disapproving  Pennie 
V.  Hildreth,  81  id.  127;  see,  also.  Jasper  v.  Hazen,  2  N.  Dak.  400. 

82  Buckingham  v.  Waters,  14  Cal.  146;  Clark  v.  Farley,  3  Duor, 
645;  Watson  v.  S.  F.  &  H.  B.  R.  R.  Co.,  41  Cal.  17.  Where  two 
causes  of  action  are  not  separately  stated,  the  objection  can  not 
be  raised  by  a  demurrer  upon  the  ground  that  several  causes  of 
action  are  improperly  united,  but  the  remedy  is  by  a  motion  to 
make  the  pleading  more  definite  and  certain  by  separating  and 
illsiinctly  stating  the  different  causes  of  action.  City  Carpet,  etc., 
Works  V.  Jones,  102  Cal,  506.  Diffei'ent  causes  of  action  are  not 
stated  where  both  legal  and  equitable  relief  are  sought  in  the  same 
pleading,  but  the  right  to  such  relief  is  leased  upon  the  same  facts. 
San  I>iego  Water  Co.  v.  Flume  Co.,  108  Cal.  .549. 

>^3i    Van   Santv.   ,54.   .55;   Linden   v.   Hepburn,   3   Sandf.   668;  but 
compare  Krower  v.  Reynolds,  99  N.  Y.  245. 
84  1  Van  Santv.  55. 


225  COMPLAINTS    IX    GEXERAL.  §  315 

deemed  incompatible.^^  So,  an  action  in  ejectment  against 
vendor,  and  an  equitable  claim  that  vendor  execute  a  convey- 
ance, can  not  in  general  be  united.^^ 

A  claim  for  the  possession  of  real  property,  with  damages  for 
its  detention,  can  not  be  joined  in  the  same  complaint,  under 
anj'  system  of  pleading,  with  a  claim  for  consequential  damages 
arising  from  a  change  of  road,  by  which  a  tavern-keeper  may 
have  been  injured  in  his  business. ^^  A  complaint  which  joins 
an  action  of  "  trespass  qiiare  daiisiim  f regit,"  ejectment,  and 
prayer  for  relief  in  chancery,  will  be  held  bad  on  demurrer.*** 
So,  claims  for  injury  to  personal  property,  and  for  its  possession, 
can  not  be  united.**'-^  Enforcement  of  equitable  lien,  and  de- 
mand for  possession  in  replevin,  can  not  be  united.^*' 

A  count  in  assumpsit  can  not  be  joined  with  a  count  in  tort; 
and  upon  trial  the  plaintiff  may  be  compelled  to  elect  upon 
which  he  will  proceed.'-*^  But  in  California,  where  both  arise 
out  of  the  same  transaction,  they  may  be  united.  It  is  held 
in  Pennsylvania  that  a  count  in  asstniipsit  can  not  be  joined 
with  a  count  for  a  deceit;  and  where  added  after  an  award  of 
arbitrators,  and  an  appeal  therefrom  by  the  defendant,  under 
a  declaration  containing  a  count  for  deceit  only,  it  was  properly 
stricken  off  by  the  court  on  the  trial.*^^ 

Counts  in  debt  and  covenant  can  not  be  joined.  Such  a 
declaration  is  bad  on  general  demurrer.^^     A  claim  on  a  de- 

fis  Undcrhill  v.  Saratoga  &  Washington  K.  R.  Co.,  20  Barb.  455. 

86  Lattin  v.  McCarty.  17  How.  Pr.  289;  8  Abb.  Pr.  225.  As  to 
ejectment  and  equitable  relief  generally,  see  Onderdonk  v.  Mott, 
34  Barb.  106. 

87  Bowles  v.  Sacramento  Tm-npike  Co.,  5  Cal.  224. 

88  Blgelow  v.  Cove,  7  Cal.  133;  Nevada  &  Sacramento  Canal  Co. 
V.  Kidd,  43  id.  184;  Budd  v.  Bingliani,  18  Barb.  494;  Cowenhoven 
V.  City  of  Brooklyn.  38  id.  9;  Ilotohkiss  v.  Auburn  &  Bochester 
R.  R.  Co..  30  id.  CAH). 

88  Spalding  v.  Spalding,  1  Code  R.  64;  Smith  v.  Hallock,  8  How. 
Pr.  73. 

80  Otis  V.  Sill,  S  Barb.  102. 

81  Noble  v.  Laley.  50  Penn.  St.  2S1;  Childs  v.  Bank  of  Missouri, 
17  Mo.  213;  Larkcy  v.  Vanderbllt,  10  How.  Pr.  155;  see  Ford  v. 
Mattlre,  14  Id.  91;  Dunning  v.  Tliomas,  11  id.  281. 

82  Pennsylvania  R.  R.  Co.  v.  Zug,  47  Penn.  St.  480.  In  Ohio, 
tort  and  contract  iiuiy  be  Joined  If  arising  out  of  the  same  transac- 
tion. Sturgps  V.  Bni-lon.  8  Ohio  St.  215.  But  not  otherwise.  Nl- 
morks  v.  Inks,  17  Olilf).  .59(1. 

83Brumbaugli  v.  Keitli.  .'!1   Penn.  St.  327. 

Vol.  1—29 


f    :]-[r>  IM.F.AniXOS   OF    PLAINTIFF.  226 

niuiul  for  moiu'v  had  and  rceoived  can  not  be  joined  with  a 
c'laiin  to  i-omprl  the  delivery  np  of  notes.''^  Jt  seems  that  the 
vendor  can  not.  unite  in  the  same  action  a  ehiim  against  a 
broker  for  damages  i'or'frandident  sale  of  land  with  a  ehvim 
against  a  purchaser  for  reconveyance  or  accounting.'-'^  So,  a 
handlord  can  not  demand  an  injunction  against  a  breach  of 
covenant  in  the  same  action  in  which  lie  demands  a  forfeiture 
of  the  lease.     Such  reliefs  are  inconsistent."" 

Claim  for  equitable  relief  against  a  corporation  and  one  for 
damages  against  individual  directors  are  incapable  of  joindei-.-'^ 
So,  where  the  interests  of  the  defendants  are  several,  as  in 
case  of  the  several  purchasers  of  securities,  in  an  equitable  suit 
to  compel  their  surrender,  the  causes  of  action  against  the 
several  purchasers  can  not  be  united.^^ 

An  individual  and  representative  claim  can  not  properly  be 
joined  in  the  same  action.^^ 

Complainant  can  not  unite  in  one  bill  a  demand  that  defend- 
ant account  individually  for  moneys  received  by  him  with  a 
demand  that  he  account  as  administrator  or  trustee.^""  So,  a 
claim  against  surviving  partners  and  executors  of  deceaseil 
partners  can  not  be  united  unless  the  survivor  is  insolvent.'"^ 

Actions  on  contracts,  injury  to  person  or  injury  to  property, 
are  incompatible  and  can  not  be  united,  as  it  is  essential  that 
they  should  all  belong  to  the  same  class.^*^^  Causes  of  action 
to  recover   damages   for   alleged   injuries   to    the    person    and 

94  Gaboon  v.  Bank  of  Utica,  3  Code  B.  110;  Alger  v.  Scoville,  6 
How.  Pr.  131. 

o."!  Gardner  v.  Ogden,  22  N.  Y.  327;  78  Am.   Dec.   192. 

fifi  Linden  v.  Hepburn,  3  8andf.  6G8;  S.  C,  5  How.  Pr.  188;  9 
N.  Y.  Leg.  Obs.  80. 

97  House  V.  Cooper.  30  Barb.  157;  IG  How.  Pr.  292. 

9«  Lexington  &  Big  Sandy  R.  II.  Co.  v.  Goodman,  2.5  Barb.  409; 
l.o  How.  Pr.  8.5;  Hess  v.  Buffalo  &  Niagara  Falls  R.  R.  Co.,  29  Barb. 
391;  Clarli  v.  Coles,  .50  How.  Pr.  178;  Austin  v.  Monro,  47  N.  Y.  3G0. 

99  Lucas  V.  N.  Y.  Cent.  R.  R.  Co..  21  Barb.  245;  Hall  v.  Fislier. 
2r»  id.  441;  Voorhis  v.  Child's  Ex'r,  17  N.  Y.  3.54;  Higgins  v.  Rockwell, 
2  Duer,  (;50:  Tracy  v.  Snydam,  30  Barb.  110;  Buckham  v.  Brett,  22 
How.  Pr.  233;  Gridley  v.  Gridley,  33  Barb.  2.50. 

loowarth  v.  Radde,  28  How.  Pr.  230;  18  Abb.  Pr.  396;  Latting 
V.  Latting,  4  Randf.  Ch.  .31;  Bai-tlett  v.  Hatch,  17  Abb.  Pr.  401;  see 
Burt  V.  Wilson.  28  Cal.  0.32,  0.39. 

101  MrVean  v.  Scott,  40  Barb.  .379. 

i'"'2Hnlce  V.  Thompson,  9  How.  Pr.  113;  Mayo  v.  Madden,  4  Cal. 
27;  Thelin  v.  Stewart,  100  id.  372;  Faust  v.  Smith,  3  Col.  App.  505; 
Lamb  v.  Harbaugh,  105  Cal.  680. 


227  COMPLAIXTS   IX    GENERAL.  §  315 

property  of  the  plaiutiir,  and  for  false  imprisonment  of  the 
plaintiff's  person,  for  forcibly  ejecting  him  from  a  house  and 
premises  alleged  to  have  been  in  plaintitrs  possession,  and 
keeping  him  out  of  the  possession  thereof,  can  not  be  united.^^^ 
So,  the  tort  of  a  husband  and  separate  tort  of  wife  can  not 
be  united. ^'^■*  A  claim  for  damages  for  a  personal  tort  can 
not  be  united  with  a  demand  properly  cognizable  in  a  court 
of  equity  in  the  same  action.^*^'^ 

As  a  rule,  personal  actions  ex  contractu  and  ex  delicto  can 
not  be  united,^*'^  as  the  distinction  between  actions  growing  out 
of  torts  and  those  growing  out  of  contracts  must  still  be  pre- 
served.^*^ It  has  been  held,  however,  that  a  party  whose  prop- 
erty has  been  wrongfully  taken,  may  waive  the  tort  and  sue  in 
assumpsit}^^  But  whichever  ground  of  recovery  the  pleader 
adopts,  the  substantial  allegations  of  the  complaint  in  a  given 
case  must  be  the  same  under  our  practice  as  were  required  at 
the  common  law.^^ 

A  bill  in  equity  is  multifarious  when  several  matters  are 
united  against  one  defendant,  which  are  perfectly  distinct  and 
unconnected,  or  when  relief  is  demanded  against  several  de- 
fendants of  several  matters  of  a  distinct  and  independent 
nature.^*"  So,  in  an  action  against  trustees  of  two  separate 
eetates.^^^ 

An  action  against  a  sheriff  and  his  official  bondsmen,  alleging 
only  a  cause  of  action  against  him  as  a  trespasser,  and  against 
his  sureties  as  signers  of  the  bond,  and  not  otherwise,  is  a  mis- 
joinder of  causes  of  action."^  So,  a  lessee  and  his  surety  can 
not  be  united  in  the  same  suit.^^^ 

108  McCarty  v.  Fremont,  23  Cal.  197. 
i04Malone  v.  Stllwell,  15  Abb.  Pr.  421. 
ion  Mayo  v.  Madden,  4  Cal.  27. 

106  White  V.  Snell,  r>  Pick.  425;  Boston  v.  Otis,  20  Id.  41;  and  see 
CorbHt  V.  Wren,  2r>  Orcp.  SfK);  Hishop  v.  Railroad  Co.,  67  Wis.  610; 
Illttenhau.se  v.  Knoop,  0  Ind.  App.  126. 

107  KnlokfrlKifkor  v.  Hall,  3  Nev.  194;  Carson  River  Lumbering 
Co.  V.  Bassett,  2  Id.  249. 

108  Eversole  v.  Moore,  3  Bush,  49;  contra,  Ladd  v.  Rogers,  11 
Alien.  2f>9;  see  Terry  v.  Munger,  121  N.  Y.  161;  18  Am.  St.  Rep.  803. 

109  Miller  V.  Van  Tassel,  24  Cal.  463. 

110  Wilson  V.  Castro,  m  Cal.  420. 

111  rial   V.   Mott,  .",7  Bnri).  208. 
iischirnrdelll   v.   P.onrlnnd,   P.2  Cal.  r>8.'>. 

iiT  Pli:il<n  v.  Dingeo,  4  E.  D.  Smith,  379;  Tlbblts  v.  Percy,  24 
Barb.  39. 


§  3l5a  I'LKADINUS   OF    TLAINTIFF.  228 

A  Inisbaiul  and  wile  may  join  in  suit  for  her  services,  but 
when  they  sue  iDgether  he  can  not  join  a  chiini  of  his  own.''"* 
A  suit  by  an  infant  coming  of  age,  seelcing  to  avoid  two  sepa- 
rate grants  to  ditl'erent  persons,  and  to  recover  })ossession,  can 
not  be  brought  in  one  actiou.^^'^ 

A  count  on  contract  made  by  one  defendant  can  not  be 
joined  witli  one  made  by  all  defendants."^  Two  claims,  the 
one  against  both  defendants  for  recovery  of  possession  of  real 
estate  and  damages,  the  other  against  one  only  for  rents  re- 
ceived, no  connection  existing  between  the  same,  can  not  be 
joined."^ 

A  complaint  setting  forth  a  liability  on  the  part  of  the  de- 
fendant, partly  joint  and  partly  several,  is  fatally  defective."** 
Or  a  claim  arising  out  of  joint  liability  on  contract,  with  claim 
for  joint  and  several  liability  sounding  in  tort."^  Nor  can  an 
action  be  maintained  against  a  defendant  as  sole  debtor  on 
one  contract  and  joint  debtor  on  another.^^" 

A  suit  on  a  recognizance  given  before  a  justice,  for  the  ap- 
pearance of  the  defendant  to  answer  a  criminal  charge.  The 
complaint,  after  setting  out  the  cause  of  action  on  the  recog- 
nizance, avers  that  the  defendant,  S.,  to  secure  his  sureties, 
executed  a  trust  deed  to  T.  of  certain  warrants  and  money. 
This  deed  provides  that  in  case  the  recognizance  be  forfeited 
and  the  sureties  become  liable  thereon,  the  trustee  is  to  apply 
the  property  to  the  payment  thereof,  so  far  as  it  will  go.  The 
complaint  asks  to  have  this  property  so  applied.  It  is  a  mis- 
joinder of  causes  of  action,  the  trust  deed  having  nothing  to 
do  with  the  liability  of  the  sureties.^^^ 

§  315a.  The  same  —  continued.  A  cause  of  action  for  dam- 
ages for  tlie  negligence  of  the  defendant  in  not  taking  due 
and  proper  care  of  a  sum  of  money  delivered  to  him  at  his 
request,  of  which  he  agreed  to  take  proper  care,  but  lost  it 

114  Avofradro  v.  Bull.  4  E.  D.  Smith,  S84. 
118  Voorliics  V.  Voorhies,  24  Barb.  3.50. 

lie  Moore  v.  Blatte  Co.,  8  Mo.  467;  Doan  v.  Holly,  25  Id.  857; 
S.  C.  20  id.  18fi. 
117  Tompkins  v.  White,  8  How.  Pr.  520. 
iiR  I.pwis  v.  Acker,  11  How.  Pr.  163. 
lie  Harris  v.  Schultz,  40  Barb.  315. 

120  Barnes  v.  Smith,  16  Abb.  Pr.  420;  Warth  v.  Radde,  28  How. 
Pr.  230. 

121  People  V.  Skidmore,  17  Cal.  260. 


329  C0MPLAIXT6    IX    GEXEKAL.  §  316 

through  his  gross  carelessness,  neghgeuee,  and  improper  con- 
duct, and  failed  to  deliver  it  upon  demand,  is  a  cause  of  action 
for  breach  of  contract,  and  can  not  be  joined  with  a  cause 
of  action  for  the  conversion  of  the  money  to  the  use  of  the 
defendant. ^^  The  o\\'ners  in  severalty  of  certain  distinct  par- 
cels of  land  brought  an  action  to  restrain  the  defendant  from 
depriving  them  of  water  carried  by  various  ditches  to  their 
respective  lands,  and  to  recover  damages  sustained  by  reason 
of  past  diversions  of  the  water.  It  was  held  that  the  cause 
of  action  for  damages  was  several  as  to  each  of  the  plaintiffs, 
and  that  it  could  not  be  joined  with  the  cause  of  action  for 
an  injunction,  which  was  common  to  all  of  them.^^  Where 
the  complaint  in  an  action  against  an  executor  contains  several 
causes  of  action  separately  stated,  an  allegation  showing  the 
defendant's  representative  character  need  not  be  contained  in 
each  count,  one  such  allegation  at  the  conclusion  of  the  com- 
plaint being  sufficient.^^'*  In  cases  where  the  substantial  rights 
of  the  parties  to  an  action  have  not  been  affected  by  a  mis- 
joinder of  causes  of  action,  a  judgment  rendered  after  a  trial 
of  the  case  upon  its  merits  should  not  be  reversed  because  the 
court  overruled  a  demurrer  for  such   misjoinder.^^^ 

§  316.  Splitting  demands.  At  law  a  creditor  has  not  the 
right  to  assign  the  debt  in  parcels,  and  thus  by  splitting  up  the 
cause  of  action  subject  his  debtor  to  costs  and  expenses  of  sev- 
eral suits.^26  j3y|.  although  such  assignment  is  not  good  at  law 
without  consent  of  the  debtor,  it  is  valid  in  equity,  and  in  an 
action  thereon  it  is  not  necessary  to  aver  consent.  So  a  prom- 
issory note  can  not  he  the  foundation  of  two  suits,  each  for  a 
part  of  the  note.^^^  l^ut  there  is  no  case  or  dictum  requiring  a 
party  to  join  in  one  action  several  distinct  causes  of  action.  The 
plaintiff  may  elect  to  sue  upon  them  separately,'^  even  when 

122  stark  v.  Wellman,  9(1  Cal.  400;  and  see  .Tasper  v.  Hazen,  2 
N.  Dak.  401. 

123  Barham  v.  Ilostetter,  07  Cal.  272. 

124  Mosley  v.  Ileney,  W  Cal.  478. 
i25A8evado  v.  Orr.  100  Cal.  2t)3. 

i2fl  Marzion  v.  VUx-he,  8  Cal.  HSC;  Canty  v.  Lattemer,  31  Minn. 
230:  riiilHps  V.  Edsall,  127  111.  .^30;  imt  see  McEwon  v.  Johnson, 
7  Cnl.  2';o:  fJrain  v.  Aldricli.  .38  id.  .^.14:  00  .\iii.  I»ef.  42.3. 

127  Mlljor  V.   Covort,   1    Wend.  487. 

i2sriiiliipM  v.  F.ci-ifk.  1<;  .loliiiH.  140;  SerT.r  v.  Sturpls.  If.  N.  Y. 
554. 


s  310  i'li:aj)in(;s  01'  tlaintiff.  330 

thoy  boloii-,'  ti)  llio  (.'lass  oi"  causes  which  might  bo  joinod,  pro- 
vided Uieir  identity  is  not  the  sanie.^^^  But  an  attorney  suing 
for  services  must  include, his  entire  deniaiul  in  one  action.'-'"  iSo 
a  joint  cause  of  action  vested  in  two  or  more  can  not  be  split. ■'^^ 
But  any  (k'uiand  may  be  spht  with  the  consent  or  asaent  of  the 
defeudant.'^^ 

The  faihire  to  join  several  causes  of  action  arising  out  of  the 
same  transaction  may  sometimes  operate  as  a  bar  to  the  subse- 
quent assertion  of  tlie  omitted  demands.^^^  Thus  in  a  suit  in 
trover  for  the  recovery  of  Bed-quilts,  when  bed  and  bed-quills 
were  taken  at  the  same  time,  a  recovery  of  the  quilts  was  a  bar  to 
an  action  for  the  recovery  of  the  bed.^^^  So  an  action  for  re- 
covery of  one  barrel  of  potatoes  was  a  bar  to  a  suit  for  the 
recovery  of  two  barrels,  all  sold  at  the  same  time.^^^  So,  in  case 
of  sale  of  liay  under  a  contract,  to  be  delivered  in  parcels. ^^'' 
So,  also,  judgment  in.  an  action  for  breach  of  one  covenant 
of  a  lease  is  a  bar  to  a  recovery  on  the  breach  of  another  covenant 
in  the  same  lease,  committed  before  the  first  suit  was  com- 
menced.^^^  The  general  rnle  of  the  common  law  is,  that  if 
a  single  canse  is  split  np.  and  two  or  more  actions  are  brought 
upon  it,  a  judgment  entered  in  one  of  them  is  held  to  be  res 
adjudicata  as  to  the  whole  cause  of  action,  and  will  be  a  bar  to 
the  maintenance  of  the  others. ^^^  But  the  legislature  of  Nevada 
has  changed  this  rule  in  tax  cases  (Gen.  Stat.,  §  1108),  and  the 
defenses  which  a  defendant  in  an  action  to  recover  taxes  may 
make  bv  answer  no  longer  include  that  of  a  former  recovery. ^^* 

128  Staplps  v.  Goodrich,  21  Barb.  317. 
ISO  Beekinan  v.  Platner,  15  Barb.  550. 

131  Coster  V.   N.  Y.   &  E.   R.  R.   Co.,  6  Duer,  46. 

132  Cornell  v.  Cook,  7  Cow.  310;  Seeor  v.  Sturcjis,  16  N.  Y.  559. 
is.'J  Phillips  V.  Berick.  16  Johns.  136;  8  Am.  Dec.  299;  Bendernasle 

V.  Cocks,  19  Wend.  207:  32  Am.  Dec.  448;  Hopf  v.  Meyers.  42  Barb. 
270.  So  in  the  case  of  a  claim  apainst  a  county.  Zirker  v.  Hughes, 
77  Cal.  235. 

134  Farrington  v.  Payne,  15  .Johns.  432. 

13.'.  Smith  v.  .Tones,  15  .Johns.  229. 

i3«Miiipr  V.  Covert,  1  Wend.  4S7. 

137  Bendernacle  v.  Cocks.  19  Wend.  207;  32  Am.  Dec.  448;  Stiiy- 
vesant  v.  Mayor  of  New  York.  11   Paige  Ch.  414. 

i3«Frpem.  on  .Jndgm..  S  2.3S. 

130  State  V.  Central  Pao.  R.  R.  Co..  21  Nov.  200. 


231  COMPLAIXTS   IN   GENERAL.  §  317 

§  317.  Actions  for  debt.  A  debt  is  a  sum  of  money  due 
upon  a  contract,  express  or  implied.i^*'  Standing  alone,  the 
word  "debt"  is  as  applicable  to  a  sum  of  money  which  has 
been  promised  at  a  future  day,  as  to  a  sum  now  due  and  pay- 
able. But  a  sum  of  money  payable  on  a  contingency  does  not 
become  a  debt  till  the  contingency  has  happened.^^^  So,  the 
wages  of  a  seaman  is  not  a  debt  till  the  vessel  has  arrived.^'*^ 
So  of  a  contract  between  shipper>.  and  owners,  which  does  not 
become  a  debt  till  the  termination  of  the  voyage.^^^  So  of  a 
covenant  to  pay  rent  quarterly,  from  which  the  tenant  is  liable 
to  be  discharged  by  quitting  the  premises,  or  by  assigning  the 
term,  with  lessor's  consent,  or  the  lessee  may  be  evicted  there- 
from by  title  paramount. ^-^^  But  a  debt  payable  in  any  event, 
but  not  yet  due,  is  a  debt,  debihim  in  praesenti,  solvendum  in 
futuro}^^ 

The  action  of  debt  lies  to  recover  a  certain  specific  sum  of 
money,  or  a  sum  that  can  readily  be  reduced  to  a  certainty."** 
It  is  a  species  of  contract  whereby  a  right  to  a  certain  sum  of 
money  is  mutually  acquired  and  host;^-*'^  or,  more  properly,  the 
result  of  such  contract.^*^  Counts  in  indebitatus  assumpsit,  here- 
tofore known  as  the  common  counts,  may  be  stated  separately,  or 
may  be  all  united  in  the  same  complaint.  It  is  only  necessary  to 
aver  an  indebtedness,  and  that  said  indebtedness  has  not  been 
paid. 

The  action  of  debt  is  founded  upon  contract;  the  action  of 
assumpsit,  upon  tlie  promise."'*  An  action  of  debt  founded  on 
a  statute  is  considered  as  an  action  founded  on  a  specialty,  but 
it  is  not  of  equal  dignity  with  a  debt  due  by  bond.^'^^ 

The  action  of  debt  will  lie  in  general  where  the  sum  is  cer- 

140  Perry  v.  Waslibiirno,  20  C.il.  .3.")();  and  see  Baum  v.  Tonkin, 
110  Penn.  St.  ."►<;<). 

141  Peoplo  v.  Arjiuello,  ?,-  Cal.  .^)24. 

142  Wont woiih  v.  Wliittemore,  1  Mass.  471. 

143  Davis  v.  Hnni,  3  Mass.  8.S;  FrothiiiKliani  v.  Haley,  id.  08. 

144  Wood   v.    Partridge.   11    Mass.  488. 
14B  Peoj)!e  v.  .XtkhoHo,  'M  Cal.  ."»24. 

14«1  Burr.  Law  Diet.  4.'>();  ?,  Bl.  Com.  l.'Vl;  ?,  Stepli.  Com.  4G1; 
Browne  on  Aclions.  3:J8;  Smitli  on  Contracts,  497;  Baum  v.  Tonkin, 
110  Penn.  St.  .'.nO. 

147  2  Bl.  Com.  404. 

148  2  Steph.  Com.  1S7. 

140  Mf'tcalf  v.   IJohinson.  2  McLean.  ?,Vu^. 
160  United  States  v.  Lyman,  1  JNIason,  482. 


ij  ;5lt  ri.KADINliS    C)l'    I'LAIXTIFF.  2o2 

tain,  and  it  is  tho  iluty  of  I  ho  delcndant  to  pay  the  amount  to 
the  i)hiintill'.'"''  r>ut  it  may  also  be  brought  for  a  sum  capable 
of  being  certainly  ascertained,  though  not  ascertained  at  the 
time  of  action  brought.^''- 

Incicbitattis  assiiDipsit  lies  to  recover  the  stipulated  price  due 
on  a  contract  not  under  seal,  where  the  contract  has  been  com- 
pletely performed. ^^^  The  action  of  debt  lies  upon  a  jiidg- 
ment,*''*  or  on  a  decree.^^^  An  indorsee  of  a  note  can  have  debt 
against  the  maker,^^^  or  against  a  remote  indorser.^^"  Tho  ac- 
tion of  debt  lies  on  a  penalty,  whether  it  be  a  statutory  penalty, 
although  uncertain,^^®  if  the  duty  or  penalty  be  capable  of  being 
reduced  to  a  certainty,^^^  or  for  the  penalty  of  an  agreement.^"" 
And  in  the  latter  case,  a  sum  less  than  the  penalty  may  be  re- 
covered.^**^ Such  action  lies  to  recover  rent  on  an  expired 
lease.^*'^  And  so  where  there  is  a  demise  not  under  seal,  whether 
against  lessee  or  lessee's  assignee,  debt  for  use  and  occupation 
will  lie.'*'^  The  action  of  covenant  lies  where  a  party  claims 
damages  for  a  breach  of  covenant,  that  is,  of  a  promise  under 
seal,  as  distinguished  from  actions  of  assumpsit,  or  for  breach  of 
contracts  not  under  seal.^^ 

151  Home  V.  Sample,  3  McLean,  150;  Bank  of  Oircleville  v. 
Iglehart,  6  id.  568. 

152  United  States  v.  Colt,  Pet.  C.  C.  145. 

153  Bank  of  CohimlMa  v.  Patterson,  7  Oranch,  299;  Cliesapeake 
Canal  Co.  v.  Knapp,  9  Pet.  541;  Hyde  v.  Liverse,  1  Craneli  C.  C. 
408:  Brockett  v.  Hammond,  2  id.  56;  Pipsico  v.  Bontz,  3  id.  425; 
to  the  contrary,  Krouse  v.  Deblois,  1  id.  138;  Talbot  v.  Selby,  id. 
181. 

154  Stuart  V.  Lander,  36  Cal.  372;  76  Am.  Dec.  538;  see,  also. 
Ex  parte  Prader,  6  Cal.  239;  Lawrence  v.  Martin,  22  Id.  173;  Pen- 
nlnpton  v.  Gibson,  16  How.  (U.  S.)  65. 

155  Pennington  v.  Gibson,  16  How.  (U.  S.)  65;  Thompson  v.  Jame- 
son. 1  Cranch,  2,82. 

15G  12  .Tohns.  90;  Willmarth  v.  Crawford,  10  Wend.  341. 

157  Ononda.ira  Co.  Bank  v.  Bates,  3  Hill,  53. 

158  T-nited  States  v.  Colt.  Pet.  C.  C.  145. 

159  Bullard  v.  Bell.  J  Mason.  243. 

ifif>  Martin  v.  Taylor,  1  Wash.  C.  C.  1. 
ifii  Id. 

ifiSThursby  v.  Plant,  1  Saund.  233;  Woodf.  323;  Norton  v.  Vultee, 
1  Hall,  .384. 
1R3  MfKeon  v.  Whitney.  3  Den.  4.52. 
164  Steph.  PI.  18;  see  Woolley  v.  Newcombe,  87  N.  Y.  605. 


333  COMPLAINTS    IX    GENERAL.  §§  318,  319 

§  318.  Actions  for  breach  of  contract.  The  requisites  which 
must  carefully  be  observed  in  a  complaint  on  contracts  are: 
1.  The  existence  of  the  contract  sued  upon,  and  its  terms  clearly- 
shown  upon  the  face  of  the  pleading;  2.  Performance  or  readi- 
ness to  perform,  and  a  tender  of  performance  on  the  part  of 
the  plaintiff,  must  be  shown;  3.  The  breach  must  be  clearly 
apparent;  4.  Special  damages  resulting  from  the  breach  must  be 
specifically  and  clearly  averred. 

8  319.  The  same  —  pleading  contract.  The  existence  of  the 
contract  should  be  stated,  and  if  it  was  an  alternative  or  a  con- 
ditional engagement,  or  qualified  by  exceptions,  this  should 
appear  in  the  complaint. ^^^ 

If  the  contract  be  in  writing,  it  may  be  pleaded  in  haec  verba, 
or  the  pleader  may  set  forth  its  legal  effect.  The  former  mode, 
however,  is  preferable  as  being  more  consistent  with  the  present 
system  of  pleading.^*^  The  rule  which  permits  the  pleader  to 
declare  upon  a  contract  in  haec  verba  must  be  limited  to  cases 
where  the  instrument  set  out  contains  the  formal  contract,  show- 
ing in  express  terms  the  promises  and  undertakings  on  both 
sides.^^'^ 

It  is  by  far  the  better  practice  to  plead  a  contract,  if  it  be  a 
writt>?n  contract,  by  setting  forth  a  copy  of  it  or  by  annexing  a 
copy  to  the  complaint,^^  the  same  as  in  action?  upon  written  in- 
struments for  the  payment  of  money  only.^^^     If  declared  on 

ifis  Hatch  V.  Adams,  S  Cow.  .3."i:  Stone  v.  Knowlton.  3  Wend.  374; 
Lutweller  v.  Linnell.  12  Barb.  .^12;  Crano  v.  Maynard,  12  Wend. 
40R:  Barilarl  v.  FeiTsa,  Tti}  Cal.  1. 

i««  Poe  Stoddard  v.  Treadwell.  20  Cal.  .".W;  Murdo<>k  v.  Brooks, 
?.S  ifl.  m?,:  Wbite  v.  Soto,  82  id.  0r>4. 

i«7  .Toseph  v.  Holt.  37  Cal.  2.'i3.  In  an  action  for  tho  breach  of  a 
contract,  a  part  only  of  wliicli  has  boon  reduced  to  writing,  the 
plaintiff  should  allepe  the  execution  of  a  parol  afjroement.  Con- 
tract Co.  v.  Bridge  Co.,  29  Orepr.  .^>49;  Railroad  Co.  v.  Reynolds, 
lis  Ind.  170.  A  comi)lalnt  settinjr  out  a  contract,  allejiinj:  full  i^or- 
forniancc  of  the  conditions  of  the  same  on  the  part  of  the  plain- 
tiff, and  breaches  thereof  by  the  defendant,  states  a  cause  of 
action  for  nonunal  d.-iinatres  at  least,  and  is,  tliprefore,  jrood  on 
peneral  demurrer.  Hudson  v.  Archer.  4  S.  Dak.  12S;  .Jacobs 
Sultan  Co.  v.  Mercnntile  Co.,  17  Mont.  01:  see  8  .12."n.  f^osf. 

ifft  Fairbanks  v.  Bloonifield.  2  Dner,  ,^40;  see  Quirk  v.  Clark.  7 
:\font.  2.''.1. 

K'!' Swan's  ri.  20);  sec  Fiske  v.  Soule.  R7  Cil.  313.  When  tlie 
writing  is  set  forth  in  haec  verba  in  the  complaint,  such  writing 
controls  any  allegation  purporting  to  state  the  effect  of  the  con- 

30 


^310  l'l.i:Al)lN(iS   01'    IM.AIN  TIFF.  234 

aoi'onlitij;  to  its  legal  oHoot,  the  defeiulant  ina}^  l)y  the  rule  of 
the  eoiumon  law  in  a  proper  ease,  crave  oyer  of  the  instrument; 
and  if  it  appears  that  its  provisions  have  been  misstated,  he  may 
sot  out  the  contract  /;/  hacc  -c'crba,  and  demur  on  the  ground  of 
thi'  variance.'"^' 

It  is  not  necessary  tliat  the  words  of  a  deed  or  other  written 
instrument  should  l)e  given;  the  substance  is  sufficient.  But 
whatever  is  pleaded  should  he  truly  pleaded. ^'^^  For  where  a 
pleading  purports  to  recite  a  deed  or  record  i)i  hacc  verba,  trifling 
variances,  if  material,  have  been  deemed  fatal. ^'^^  The  instru- 
ment set  forth  must  be  free  from  defect  or  ambiguity.  If  not, 
the  pleader  must  put  some  construction  upon  it  by  averment. ^'^^ 
Bnt  the  meaning  of  words  or  abbreviations  used  in  the  instru- 
ment may  be  proved  on  the  trial,  for  the  purpose  of  enabling 
the  court  to  interpret  the  words,  and  the  oral  evidence  as  to 
their  meaning  need  not  be  stated  in  the  pleading,  nor  do  abbre- 
viations contained  in  the  contract  render  the  pleading  liable  to 
special  demurrer.^^*  Preliminary  and  collateral  matters  of  sub- 
stance must  be  alleged,  and  recitals  in  the  instrument  can  not 
serve  as  such  allegations. ^'^° 

Eecords  and  papers  can  not  be  made  a  part  of  a  pleading  by 
merely  referring  to  them,  and  praying  that  they  may  be  taken 
as  a  part  of  such  pleading,  without  annexing  the  originals  or 
copies  as  exhibits,  or  incorporating  them,  so  far  as  to  form  a  part 
of  the  record  in  the  cause.^^^  The  party,  by  pleading  a  record 
with  the  words,  "  as  appears  by  the  record,"  or  "  as  appears  of 
record,"  proffers  that  issue,  and  it  is  incumbent  on  him  to  main- 
tain it  literally;  and  this  is  true  where  the  averment  has  refer- 
ence to  particulars  which  need  not,  as  well  as  to  those  which 
must,  be  specifically  stated  upon  the  record. ^'^'''     Tn  an  action  of 

tract  as  a  lesral  conclusion.  Patrick  v.  Colorarlo  Smeltins  Co.,  20 
Cn].  2nS;  Ix)ntsenlnzer  v.  Milling  Co.,  5  Col.  App.  479. 

i"f|  Stoddard  v.  Ti-eadwell,  26  Cal.  300;  see  Los  Angeles  v.  Signo- 
ret.  m  id.  298. 

171  Ferguson  v.  Harwond.  7  Cranch,  408. 

172  Id. 

173  Dnrkeo  v.  Cota,  74  Cal.  .'^15. 

174  Berry  v.  Kowalsky,  9.^>  Cal.  IPA:  29  Am.  St.  Rep.  101;  Callahan 
V.  Stanley.  57  Cal.  476;  .Taqna  v.  Witliam.  etc..  Co.,  10«  Tnd.  i>45. 

175  Lambert    v.    Haskell.    SO    Cal.    Oil;    Leadville    Water    Co.    v. 
I-oadvillo.  22  Col.  297. 

i7fi  People  V.  De  la  Onen-a,  24  Cal.  78. 

177  Purcell   V.   Macnamara,  9  East,   160;  Whittaker  v.   Branson, 
2  Paine,  209. 


235  COMPLAINTS   IN    GEXEKAL.  §  310 

foreclosure,  where  the  complaint  has  a  copy  of  the  mortgage 
annexed,  and  to  which  it  refers,  a  correct  description  of  the  land 
in  the  mortgage  is  sufficient  for  the  purpose  of  the  suit.^'^^ 

If  time  is  stated,  it  should  be  when  the  debt  became  due, 
though  time  is  only  material  when  it  is  sought  to  recover  in- 
terest.^'^  Thus,  in  an  action  on  the  case  for  failure  to  perform 
a  parol  contract,  the  time  of  making  it  is  not  material.^^*^  The 
plaintiff  may,  in  fact,  allege  any  time  after  the  debt  accrued  and 
give  evidence  of  the  true  time.^^^ 

If  the  time  of  performance  is  not  stated,  the  law  imports  a 
reasonable  time  therefor.^^^  Jq  assumpsit  on  a  promise  to  pay  a 
debt  due  by  the  promisor,  if  the  plaintiff  would  give  time, 
whenever  the  promisor  should  be  able,  the  declaration  need  not 
state  that  the  plaintiff  accepted  the  promise.  It  is  sufficient  to 
aver  that  the  time  was  given  and  the  ability  of  the  defendant.^*^^ 

Although  the  forms  of  the  action  of  assumpsit  and  of  the 
pleadings  therein  have  been  abolished,  yet  the  distinction  be- 
tween an  express  and  implied  assumpsit  remains,  and  it  is  only 
on  theoj-y  of  an  implied  assiimpsit,  "  inferred  from  the  conduct, 
station,  or  mutual  relation  of  the  parties,"  that  justice  can  be 
enforced  and  the  performance  of  a  legal  duty  compelled.  It  is 
no  longer  necessary  in  such  a  case  for  the  plaintiff  to  allege  in 
his  complaint  any  promise  on  the  part  of  the  defendant;  but  he 
must  state  facts  which  if  true  according  to  the  well-settled  prin- 
ciples of  law,  would  have  authorized  him  to  allege,  and  the  court 
to  infer,  a  promise  on  the  part  of  the  defendant  in  a  case  of 
assumpsif.^^^ 

The  allegation  that  the  defendant  "made  his  contract  in 

iTREmerlc  v.  Tarns,  fi  Cal.  1.^.5. 

170  Lyon  v.  Clark,  S  N.  Y.  148;  but  see  Norris  v.  Elliot,  ."^O  Cal.  74; 
Toflfl  V.  Myres,  40  Id.  3.55. 
i«n  Sfull  V.  IlifTRins,  Herapst.  90:  comparo  MoEaufililin  v.  Tumor, 

1  Cranrh  C.  C.  476. 

iRi  Moffot  V.  Sar-kett.  IS  X.  Y.  ."22;  Fnrran  v.  Sh<>rAVoo(l.  IT  id. 
227;  Wotniore  v.  San  Franfisc-o,  44  Cal.  20!).  Tiiue,  wlu'u  imiiorlant, 
Bhoulfl  he  allpfred  with  reasonablo  rortainty.  Reiner  v.  Joues,  3 
Misr.  (N.  Y.)  140. 

iR2Fifkott  V.  P.ilff.  22  Ti(Av.  Vr.  101;  IU)l)orts  v.  Mazei)pa  Mill 
Co..  .'',0  ?*nnn.  413. 

1R3  Eonsdalc  v.  F.rown,  4  Wash.  C.  C.  14S:  comijan'  Rir-e  v.  Rarry, 

2  Cranch  C.  C.  447. 

1R4  Swan's  PI.  174;  Farron  v.  Sherwood,  17  N.  Y.  227;  Byxbic  v. 
Wood,  24  Id.  G<:>7. 


§  ol'Ja  I'LEAOliS'Cid   01'    I'LAl^iTlFF.  Ji3t) 

\vritiii>,',"  imports  a  delivery/^  and  this  need  not  ordinarily  be 
alk'getl,"*''  nor  need  it  be  alleged  that  it  was  aceepted.^**'^  Excep- 
tions, however,  exist  to  this  rule,  as  in  case  oi'  instruments  in 
trust,  for  benelit  of  others,  where  delivery  should  bo  alleged. 
Thus  in  ca^^e  wliere  a  grantor  handed  a  deed  purporting  to 
convey  land  to  his  son  to  a-  third  party,  saying:  "Here  is  a  writ- 
ing in  [my  son's  J  I'avor.^^**  It  is  lor  him,  but  I  don't  want  him 
to  have  it  in  his  hands  just  now;  1  want  you  to  take  it  and  kee}) 
it  in  your  possession  till  a  proper  time  to  produce  it.  If  J 
keep  it  in  my  hands  1  don't  know  who  will  get  hold  of  it,"  and 
gave  his  reasons,  there  being  no  privity  between  the  depositary 
and  the  grantee;  on  the  death  of  the  grantor,  it  was  held  that 
there  had  been  no  delivery.^^^ 

§  319a.  The  same  —  assumpsit  —  common  counts.  The  prac- 
tice of  pleading  a  double  statement  of  the  case  so  as  to  meet 
tlie  exigencies  of  the  proofs  is  not  permitted  under  the  reform 
procedure,  as  a  general  rule.  It  should,  however,  be  allowed 
in  exceptional  cases,  in  order  to  prevent  a  failure  of  justice. ''■^'^ 
When  the  general  rule  is  violated,  the  remedy  is  by  motion 
before  or  at  the  trial  for  an  order  compelling  the  plaintiff  to 
elect  upon  which  count  he  will  proceed.^''^  The  right  to  rely 
U]ion  the  common  counts  was  settled  by  the  earlier  California 
dGcisions;^^^  and  they  may  be  used  in  an  action  of  assumpsit 

185  Prindle  v.  Caruthers,  15  N.  Y.  425. 

isfi  Brinkerhoff  v.  Lawrence,  2  Sandf.  Ch.  400;  Peets  v.  Bratt,  Q 
Barb.  6G0;  Tompkins  v.  Corwiu.  9  Cow.  255. 

187  Gazley  v.  Price,  16  .Tolms.  2G7. 

188  See  Whitelock  v.  Fiske,  3  Edw.  131. 

189  Baker  v.  Haskell,  47  N.  H.  479;  93  Am.  Deo.  4.55. 

190  Cramer  v.  Oppenstein,  16  Col.  504;  Leonard  v.  Roberts.  20  Id. 
88:  Kimball  v.  Lyon.  19  id.  266:  Pearson  v.  Railroad  Co..  45  Iowa, 
497. 

191  Spauldinjr  v.  Saltiel,  18  Col.  86;  Wilson  v.  Smitli,  61  Cal.  209: 
and  see  Plmnmer  v.  Mold,  22  Minn.  16.  The  motion  to  compel 
an  election  is  addressed  to  tlie  discretion  of  tlie  court.  Manders  v. 
Craft,  3  Col.  App.  236;  Ilawley  v.  Wilkinson,  18  Minn.  .52.5. 

102  See  Buckinpham  v.  Waters.  14  Cal.  146;  De  Witt  v.  Porter, 
13  id.  171;  see,  also,  Farwell  v.  Murray,  104  id.  464;  Pleasant  v. 
Samuels,  114  id.  34;  Allen  v.  Patterson,  7  N.  Y.  476;  57  Am.  Dec. 
542:  Ball  v.  Fulton  County.  31  Ark.  379.  But  while  the  common 
founts  are  in  some  cases  sufficient  under  the  Code,  they  are  in- 
suffifient  in  those  fasces  where  they  were  insufficient  under  the  old 
system  of  pleading.    Barrere  v,  Somps,  113  Cal.  97. 


237  COMPLAIXTS   IX    GENERAL.  §  o2{) 

against  a  municipal  corporation.^^^  And  where  a  complaint, 
framed  in  accordance  with  the  common  counts,  clearh'  indi- 
cates that  the  same  cause  of  action  was  stated  in  each  count, 
findings  for  the  plaintiff  on  one  of  the  counts,  without  find- 
ings on  the  others,  are  sufficient  to  support  a  judgment  in  his 
favor.^^*  A  complaint  in  an  action  by  a  contractor  to  enforce 
a  mechanic's  lien,  in  which  the  special  contract  between  the 
contractor  and  owner  of  the  building  is  stated,  can  be  changed 
by  amendment  into  an  action  on  the  contract,  wliich  may  be 
counted  on  specially,  or  the  common  counts  in  assumpsit  may 
be  used,  in  accordance  with  the  general  rules  applicable  to 
such  counts.^^^  Under  sections  1845,  1846  and  1849,  Com- 
piled Laws  of  Xew  ]\Iexico,  providing  that  contracts  which, 
by  the  common  law,  are  joint  only,  shall  be  construed  to  be 
joint  and  several,  and  that  suit  may  be  brought  and  prosecuted 
against  any  one  or  more  of  the  parties  liable  thereon,  it  is  not 
essential  to  a  recovery  in  assumpsit,  on  a  contract  laid  in  the 
declaration  as  joint,  to  prove  a  contract  by  all  the  defendants. 
Proof  of  a  several  contract  with  one  is  sufficient  to  warrant  a 
recovery  as  against  him.^^^ 

§  320.  Allegations  of  promise.  If  there  is  an  express  prom- 
ise, it  should  be  properly  alleged  and  proved.  In  such  case, 
the  promise  is  the  fact  constituting  the  cause  of  action.  But 
if  the  promise  is  implied  from  the  other  facts  alleged,  it  need 
not  be  averred.  And  in  the  absence  of  an  express  promise, 
every  fact  essential  to  fix  the  liability  of  the  defendant  should 
be  stated;  for  where  the  plaintiff  does  not  allege  in  his  plead- 
ings a  contract  or  agreement,  he  can  not  recover  upon  it.^^ 

is*3  Brown  v.  Board  of  Education,  103  Cal.  531. 

liH  Le«'ke  v.  Ilancofk,  7f!  Cal.  127. 

ifs  Ca.stapnlno  v.  Balletta,  82  Cal.  2.".0.  See  a  statement  of  these 
rules  set  forth  in  tlic  opinion  in  tliis  case.  Complaint  in  action  for 
breach  of  contract  amended,  claiming  upon  a  quanhim  meruit-  See 
Cox  v.  McLouRhllu,  7(J  Cal.  W.  Sufliciency  of  complaint  in 
assumpsit.  See  Galvin  v.  Milling  Co.,  14  Mont.  508.  Joinder  of 
common  counts  In  an  action  for  the  balance  of  an  account.  Mills 
V.  c;iennon,  2  Idaho,  1)5. 

i'.»';  Kirchncr  v.  I.au^'lilin,  4  X.  Mex.  218.  A  contractor  is  not 
bound  as  a  matter  of  \\U'a<\\\\\i  to  declare  upon  tlie  contract,  but 
may  declare  for  work  and  materials,  and  jirove  the  contract. 
Hai-tley  v.  Murtlia,  .3!)  N.  V.  Supi).  312. 

n»7  Wilkins  v.  Stid^'f-r.  22  Cal.  2.35;  83  Am.  Dec.  04;  Wills  v.  Wills, 
34  Ind.  100;  Farron  v.  Sherwood,  17  N.  Y.  227;  Jordan,  etc.,  Co.  v. 


^  ;5;>0  iM,i;.vi»iN(is  ok  im,aini'ii-1''.  238 

A  party  who  has  wholly  ]i(.mIoiiirh1  a  spiH'ial  contract  on 
his  i>arl  inav  count  upon  the  iinj)lic(l  agi'coaR'iit  ol"  the  other 
j)ariy  to  ])ay  the  stipuiateil  price,  and  is  not  hound  to  specially 
declare  u])on   the  agreement.^'''* 

In  pleading  a  contract  which  the  Statute  of  Frauds  requires 
to  he  in  writing,  c.  g.,  a  contract  relating  to  lands  —  it  is  not 
necessary  to  allege  the  facts  relied  on  to  take  the  case  out  of 
the  statute.  It  is  sutVu-icnt  on  denuirrer  to  allege  that  a  con- 
tract was  made.  Such  an  allegation  is  to  he  understood  as 
intending  a  real  contract  —  something  which  the  law  would 
recognize  as  such.  There  is  no  reason  for  departing,  under 
the  Code,  from  the  former  well-settled  rules  in  law  and  equity.^®® 
The  existence  of  a  writing  in  such  case  is  a  matter  of  evidence; 
it  is  not  one  of  tlie  i)leadahle  facts.^*^*^ 

Thus,  a  complaint  upon  an  undertaking  to  answer  for  the 
deht  of  a  third  person  is  good,  though  it  does  not  allege  that 
either  the  promise  or  the  consideration  was  in  writing.^^  And 
the  same  rule  is  established  in  Calif ornia.^^ 

Morley,  23  id.  552;  Irwin  v.  Schultz,  46  Penn.  St.  74.  An  implied 
promise  is  a  mere  conclusion  of  law,  and  the  facts  from  which  such 
promise  is  implied  must  be  stated.  But  the  rule  is  different  in 
the  case  of  an  express  promise,  whicli  is  an  ultimate  fact,  and 
must  be  pleaded  as  such,  though  the  word  "  express "  isi  not 
necessary  to  be  used  in  pleading  the  promise.  When  a  promise  is 
alleged  in  a  pleading,  it  must  be  held  to  be  express.  Poly  v. 
\^'illiams,  101  Cal.  (MS.  In  an  action  to  enforce  a  promise  alleged 
to  have  been  made  by  the  defendant,  on  a  certain  day,  the  plaintiff 
is  entitled  to  recover  upon  proof  that  the  promise  was  made  at  any 
time  before  the  commencement  of  the  action.  He  need  not  prove 
that  it  was  made  on  or  about  the  time  alleged  in  the  complaint. 
Blven  V.  Bostwick,  70  Cal.  039. 

i9fi  Allen  V.  Patterson,  7  N,  Y.  476;  .57  Am.  Dec.  542;  Keteltas  v. 
Myers,  19  N.  Y.  231;  Moffet  v.  Sackett,  18  id.  522;  Hosley  v. 
Black.  28  id.  428;  S.  O.,  26  How.  Pr.  97;  Todd  v.  Huntington,  3 
West  Coast  Rep.  .331;  Steeples  v.  Newton,  7  Oreg.  110;  33  Am.  Dec. 
7(1.".;  Tribou  v.  Strowbridge,  7  Oreg.  156. 

u>9  Etling  V.  Vanderlyn,  4  Johns.  237;  Meyers  v.  Morse,  15  id.  425; 
Curtlss  V.  Aetna  L.  Ins.  Co.,  90  Cal.  245. 

200  Livingston  v.  Smith,  14  How.  Pr.  490. 

201  State  of  Indiana  v.  Woram,  (i  Hill,  33;  40  Am.  Dec.  378;  and 
also  in  Wakefifld  v.  Orcenliood,  29  Cal.  597,  where  it  is  held  that 
thougJi  the  contract  must  be  in  writing  under  a  statute,  yet  it  is 
not  ni-cessary  in  tlic  comjjlaint  to  show  that  fact. 

2*^2  McDonald  v.  Mission  View  II.  Ass'n,  51  Cal.  210;  Nunez  v. 
Morgan,  77  id.  427;  McMenomy  v.  Talbot,  84  id.  279.  An  allegation 
that  a  contract  was  made  without  stating  whether  or  not  it  was  in 


239  COMPLAINTS    IX    GENERAL.  §321 

§  321.  Consideration,  when  must  be  alleged.  The  essential 
element  of  every  contract  being  the  consideration,  a  proper 
statement  in  the  complaint  becomes  a  matter  of  great  im- 
portance, while  an  averment  of  consideration  in  cases  where 
it  is  implied  by  law,  becomes  surplusage,  and  should  be  avoided. 
The  rule,  however,  is  that  the  consideration  must  appear  on  the 
face  of  the  complaint,  either  impliedly,  as  in  cases  of  sealed 
instruments,  where  the  seal  imports  consideration;^*  or  the 
particular  consideration  on  which  the  contract  is  founded  laust 
be  expressly  stated,^*^*  whenever  proof  of  it  is  necessary  to  sup- 
port the  action,^"^  for  in  its  absence  no  cause  of  action  can 
be  maintained.^*^*^ 

In  a  suit  upon  an  agreement  under  seal,  the  complaint  set- 
ting out  the  agreement  in  hacc  verba  need  not  aver  any  consid- 
eration for  the  agreement.  The  seal  imports  a  consideration.''^^ 
But  on  a  simple  contract  the  law  of  pleading  requires  the  com- 
plaint to  state  the  particular  consideration  for  the  defendant's 
promise  declared  on.^*^*  And  in  all  cases  when  the  performance 
of  the  consideration  is  a  condition  precedent.^^  This  rule  has 
its  exceptions,  as  in  cases  of  bills  of  exchange  and  promissory 
notes,  where  the  consideration  is  implied.^^*^  In  California  any 
written  instrument  is  presumptive  evidence  of  a  consideration,^^ ^ 

writing,  will  be  construed  to  mean  that  the  contract  was  in 
writing,  if  the  law  requires  it  to  be  so.  Barnard  v.  Lloyd,  8.1  Cal. 
131. 

203  Wills  V.  Kempt,  17  Cal.  98;  McCarty  v.  Beach,  10  id.  461. 

204  1  Chit.  PI.  293;  Douglass  v.  Davie,  2  McCord,  218;  Keau  v. 
Mitchel,  13  Mich.  207,  and  cases  there  cited. 

205  4  Johns  280. 

206  Bristol  v.  The  Rensselaer,  etc.,  Co.,  9  Barb.  158. 

207  Willis  v.  Kempt,  17  Cal.  99;  McCarty  v.  Beach,  10  id.  401. 
2o«  Moore  v.  Waddle,  34  Cal.  14,5;  Joseph  v.  Holt,  37  id.  253. 
2'J9  Moore  v.  Waddle,  .'54  Cal.  145. 

210  I,].:  7  X.   Y.   Leg.  Ohs.    149. 

211  Civil  Code.  §  1014;  Williams  v.  Hall.  79  Cal.  GOG;  Downing  v. 
Le  Du,  82  id.  471;  Toomy  v.  Dunphy.  80  id.  G39.  A  coinitlaint 
which  alleges  tliat  a  corporation  defendant  e.\ecuted  a  conlract  in 
writing  whereby  it  agreed  and  promised  to  i)ay  the  i)laintiff  on  a 
given  date  a  eeitain  sum  of  mone>',  states  facts  from  wliicli  the 
law  presumes  a  coiisideralion,  and  tlie  failnie  speci;illy  to  allege 
a  consideration  ff)r  the  written  contract  is  not  ground  of  demuner, 
though  the  contract  is  not  set  out  /;;  hacc  verba.  Henlce  v.  Kuivka 
Endowment  Ass'n,  IW  Cal.  IL'O.  Complaint  showing  a  want  of 
consideration  for  the  promise.  See  Amestoy  v.  Tninsit  Co.,  95 
Cal.  311. 


§  Ov'l  ri.KADlNdS    OK    PLAINTIFF.  240 

unci  the  burden  ol'  showing  a  want  of  consideration  sufficient 
to  support  an  instrument  lies  with  the  party  seeking  to  invali- 
date or  avoid  it.^^'  Similar  statutes  have  been  passed  in  many 
of  the  states.-i^ 

To  constitute  a  valuable  consideration  it  is  not  necessary 
that  money  should  be  paid.  It  is  sufficient  that  it  has  been 
expended  on  the  faith  of  the  contract.^^'*  The  acknow'ledg- 
ment  of  one  dollar  is  sutHcient,  whether  actually  paid  or  not.^^'"^ 
The  consideration  of  a  written  instrument  may  be  inquired 
into.^^''  It  has  been  held  that  the  allegation  of  a  "  good  and 
valuable  consideration "  is  not  sufficient  on  demurrer,  or  to 
sustain  a  judgment  by  default;  yet  it  is  sufficient  to  sustain  a 
verdict  after  trial  upon  the  issues.^^^ 

If  part  of  a  consideration  be  merely  voidable,  the  contract 
may  be  supported  by  the  residue,  if  good  per  se.  But  if  any 
part  be  illegal  it  vitiates  the  whole.^^*  It  is  no  objection  that 
the  direct  consideration  moves  to  a  third  person. ^^^  Nor  is  it 
an  objection  that  it  moves  from  a  third  party  to  tlie  person 
who  seeks  to  enforce  it.^^ 

The  consideration  must  in  all  cases  be  legally  sufficient  to 
support  the  promise  for  the  breach  for  which  the  action  is 

212  Civil  Code.  §  1615;  Poirier  v.  Gravel,  88  Gal.  79.  Possession 
of  a  uote  given  by  the  husband  to  the  wife  is  not  of  itself  evidence 
that  any  advantage  had  been  obtained,  and  the  giving  of  it  does 
not  indicate  a  trust,  but  the  note  is  an  ordinary  contract,  which 
implies  a  consideration.    Dimond  v.  Sanderson,  103  Gal.  97. 

213  Wag.  Stat.  '^70,  §  6;  Caples  v.  Branham.  20  Mo.  248;  Iowa  Code, 
5§  2112,  2114;  Ky.  Gen.  Stat.  (1873),  249;  Kanas.  Gen.  Stat.  (1868), 
183;  Ind.  Code  Civ.  Pro.,  273;  and  see  Lindell  v.  Roakes,  60  Mo.  249; 
Keesling  v.  Watson,  91  Ind.  578;  Clay  v.  Edgerton,  19  Ohio  St.  549; 
2  Am.  Kep.  422. 

214  King  V.  Thompson.  (>  Pet.  204. 

215  Dutchman  v.  Tooth,  5  Bing.  N.  C.  577;  Lawrence  v.  McCal- 
monnt.  2  How.  (U.  S.)  426. 

216  See  Cal.  Code  Civ.  Pro.,  §  1962,  and  §  1963,  subd.  39;  see,  also, 
Cravens  v.  Dewey,  13  Cal.  43;  Peck  v.  Vandenberg,  30  id.  12; 
Ingers<^)ll  v.  Truebody,  40  id.  <R)3;  McCulloch  v.  Hoffman,  10  Hun, 
i:i3;  Wilson  v.  Ellsworth,  25  Neb.  246;  Miller  v.  McKenzie,  95  N. 
Y.  575. 

2i7Kean  v.  Mitchell,  13  Mich.  207. 

218  1  Sandf.  PI.  &  Ev.  187;  Cobb  v.  CowdeiT,  40  Yt.  25;  94  Am. 
Dec.  370. 

2i»Townley  v.  Sumrall,  2  Pet.  170;  but  compare  D'Wolf  v. 
Kaband,  1  id.  476. 

22f'  Raymond    v.   Pritchard,   24   Ind.   318. 


241  COMPLAINTS   IN   GENERAL,  §  332 

brouglit,-^^  If  there  is  a  benefit  to  the  defendant  and  a  loss 
to  the  pkiintifl;  directly  resulting  from  the  promise  in  behalf 
of  the  plaintilf,  there  is  a  sufficient  consideration  to  enable  the 
latter  to  maintain  an  action.^^*^  The  court  will  not  inquire 
into  the  exact  proportion  between  the  value  of  the  considera- 
tion and  that  of  the  thing  to  be  done  for  it.^^ 

The  recital  in  a  complaint  of  an  executed  or  past  considera- 
tion is  not  usually  traversable,  and  requires  little  certainty, 
either  of  name,  place,  person,  or  subject-matter,^^  although 
it  should  be  known  to  both  parties  at  the  time  of  making  the 
contract  that  the  subject-matter  is  liable  to  a  contingency  by 
which  it  may  be  destro3-ed.  If  this  contingency  has  already 
happened  at  the  time,  the  agreement  is  without  consideration.^^ 

However  strong  may  be  one's  moral  obligation  to  do  that 
which  he  agreed  to  do,  it  is  onl}^  promises  founded  on  the  per- 
formance of  duties  actually  agreed  to  be  done,  or  imposed  by 
law,  which  are  regarded  in  law  as  binding.  A  promise  by  a 
party  to  do  what  he  is  bound  in  law  to  do,  is  an  insulTicient 
but  not  an  illegal  consideration.^^ 

In  contracts  imposing  a  restraint  on  one  of  the  parties  con- 
tracting, there  must  not  only  be  a  consideration  for  the  con- 
tract, but  some  good  reason  for  entering  into  it,  and  it  must 
impose  no  restraint  upon  one  party  which  is  not  beneficial  to 
the  other.227 

§  322.  Alleging-  performance  of  contracts.  In  pleading  the 
performance  of  conditions  precedent  in  a  contract,  it  is  not 
necessary  to  state  the  facts  showing  such  performance,  l)ut  it 
may  be  stated  generally  that  the  party  duly  performed  all  the 
conditions  on  his  part,  and  if  such  allegation  be  controverted, 
the  party  pleading  must  establish,  on  the  trial,  the  facts  show- 
ing such   performance.-^     The   purpose   of  the   statute   is  to 

221  1  Chit.  I'l.  202:  I'-ristol  v.  Rensselaer  &  Saratofra  R.  R.  Co..  9 
Barb.  l.'.S. 

222  Add.  on  Cent.  1002;  Eiiiprson  v.  Slator.  22  How.  (U.  S.)  43. 
22.3  1  Pars,  on  Cont.  ?,(>2.  and  autliorities  tliore  cited. 

224  Coblini-t  V.  Francis,  X2  Venn.  St.  ir, 
22.1  Allfn  v.  llainniond,  11    Pet.  (\U. 

226  Cold.  V.  Cowdory,  40  Vt.  2.".:  II  Am.  Doc    870. 

227  California  Sfenni  Nav.  Co.  v.  A\ii',''  t,  ('.  Cal.  2".3. 

22RCal.  Code  Tiv.  Pro..  §  4.":  i'isk  v.  Ilpnarie.  1.^  Orojr.  l.^>6; 
Ulasintrnmc  v.  Ilomo  Ins.  Co.,  7")  f'al.  (;:V!;  Plioi  nix  Ins.  Co.  v.  Oolden, 
121  Ind.  524;  Louisville  Underwriters  v.  Durland,  123  id.  544. 

YoL.  1—31 


§  332  PLEADINOS   OF    PLAINTIFF.  24:2 

avi)id  prolixity  by  pornutting  tlie  plaintiil*  to  aver  generally, 
by  grou])ing  all  the  conditions  to  be  performed  by  himsell  in 
ft  general  avi'iiiu'iit  that  he  has  duly  performed  them  all.^--' 
And  it  is  a  sutlieient  averment  to  allege  that  he  had  "  fully 
and  faithfully  "  performed  the  said  contract  on  his  part.^^ 
This  general  allegation  of  performance  is  confined  to  conditions 
containotl  in  contracts.  If  the  performance  of  a  condition 
precedent,  not  contained  in  a  contract,  is  necessary  to  create 
a  cause  of  action,  the  facts  showing  such  performance  must 
be  alleged.^^^ 

It  seems  that  the  word  "  party,"  in  the  provision  of  the 
Code  that  "  it  may  be  stated  generally  that  the  party  duly 
performed  all  the  conditions  on  his  part,"  means  the  person 
or  persons  by  whom  the  conditions  were  to  be  performed,  and 
the  plaintiif  in  the  suit  is  not  necessarily  the  person  who  is  the 
party  to  the  contract.  Upon  a  liberal  construction,  the  statute 
means  that  it  may  be  stated  generally  that  the  person  or  per- 
sons by  whom  the  conditions  were  to  be  performed  have  duly 
performed,  etc.^^^ 

In  an  action  on  a  contract  by  which  the  plaintiff  had  bound 
himself  to  do  certain  acts,  and  to  procure  third  parties  to  do 
certain  acts,  the  complaint  alleging  performance  on  their  part, 
in  the  following  form:  And  the  plaintiff  further  says,  that  he 
and  those  on  whose  behalf  the  agreement  was  made  and  entered 
into  by  him  have  fully  and  faithfully  performed  and  fulfilled 
all  and  singular  the  covenants  and  agreements  in  the  said 
agreement  contained,  on  the  part  of  the  said  plaintiff  and  those 
on  whose  behalf  the  said  agreement  was  made  and  entered  into 
by  him,  as  aforesaid,  was  held  sufficient. *^^  Such  general  aver- 
ment imports  a  sufficient  statement  of  being  ready  to  do  all 
things  necessary  in  the  future.^^^ 

And  where  certain  work  was  to  be  done  by  the  defendant, 

220  Woodlnuy  V.  Sackrirler,  2  Abb.  Pr.  402;  Graham  v.  ]\Iachado, 
6  DufT.  ni.-);  Rowland  y.  Phnlen,   1  Bosw.  4.3. 

230  Rowland  v.  Tlialon,  1  Rosw.  44:  Griffiths  v.  Hendorson,  49 
Cal.  HTO:  Smith  v.  Mohn,  87  id.  489. 

231  Spear  v.  Downing.  S4  Barb.  523:  Dye  v.  Dye,  11  Cal.  107; 
Rhoda  V.  Alameda  Co..  ^2  id.  3150;  People  v.  .Taokson,  24  id.  632; 
Hatfh  V.  Peet,  23  Barb.  5S0;  Couch  v.  InsersoU,  2  Pick.  292;  Kane 
V.  Hood.  13  id.  281;  Pomroy  v.  Gold.  2  Met.  500. 

232  Rowland  v.  Phalen,  1  Bosw.  43. 

233  Td. 

2.34  Williams  on  PI.  117.  n.;  Bentley  v.  Dawes,  9  Exch.  666. 


2-t3  COMPLAINTS   lif    GENEKAL.  §  323 

for  the  government,  and  certain  things  were  to  be  done  by  the 
plaintiff  to  enable  the  defendant  to  perform  his  contract,  the 
declaration  must  show  that  the  precedent  acts  were  done  by 
the  government,  according  to  the  terms  of  the  contract.-^^ 

Performance  must  be  averred  according  to  the  intent  of  the 
parties.  Thus,  a  vendor  of  land  who  sues  upon  an  agreement 
of  sale  containing  a  covenant  on  his  part  that  he  "  will  make  a 
deed  for  the  property,"  must  aver  and  prove  not  merely  his 
readiness  to  "  deliver  a  deed,"  but  that  he  had  a  good  title,  free 
of  incumbrance,  which  he  was  ready  and  willing  to  convey  by  a 
legal  deed.^^^ 

In  an  action  of  covenant  on  a  contract  to  deliver  merchandise 
at  any  place  between  certain  points  on  a  river,  to  be  designated 
by  the  party  to  whom  the  delivery  was  to  be  made,  the  omission 
of  such  party  to  designate  the  place  did  not  prevent  the  other 
from  making  a  delivery  at  any  convenient  point  he  might  select. 
The  declaration  need  not  aver  that  a  place  of  delivery  was  des- 
ignated, nor  that  notice  of  a  place  for  the  delivery  of  the  mer- 
chandise was  given.  An  issue  formed  as  to  such  notice  is 
immaterial.^'^ 

An  averment  of  performance  is  always  made  in  the  declaration 
upon  contracts  containing  undertakings;  and  that  averment 
must  be  supported  by  proof.^^  In  pleading  title  to  land  under 
an  act  of  the  legislature  which  prescribes  conditions  upon  the 
performance  of  which  the  title  may  be  recovered,  it  is  necessary 
to  aver  a  performance  of  all  the  acts  required  by  the  statute.*^^® 

235  T'nited  States  v.  Beard,  .t  McLean.  441;  compare  Hart  v.  Rose, 
Hempst.  238. 

23r.  wasliington  v.  Ogden.  1  Black  (IT.  S.),  450;  Prewett  v.  Vaughn, 
21  Ark.  417. 

237iiarineld  v.  Patten,  Hempst.  2C,S. 

23S  Bank  of  Columbia  v.  Hajrnor,  1  Pet.  4r>r>;  TTnited  States  v. 
Arthur,  5  Cranch  (U.  S.),  257;  comparo  Beale  v.  Nowton,  1  Id.  404; 
Savai-y  v.  Goe,  3  Wash.  140. 

239  People  v.  Jaeksnn,  24  Cal.  032.  A  oomplalnt  which  does  not 
allege  perfoinianee  of  one  of  llie  essential  conditions  imposed  upon 
the  plaintiff  hy  the  1(mi)ir  of  his  eontraact,  fail.s  to  state  a  cause 
of  action.  .Tones  v.  Perot.  10  Col.  141.  And  when  the  promise 
deelan-d  on  is  In  ]»art  erniditioufil,  and  tlie  performance  or  happen- 
ing of  tlie  condition  njion  wliifli  tlie  i)roniise  is  to  l)epome  absolute 
Is  not  Mverred,  tlie  eo'nii)laint  is  not  suflicicnt,  as  to  such  conditional 
part  of  the  promise,  to  sustain  a  recovery.  Patrick  v.  Colorado 
Smelting  Co.,  20  Col.  2G8. 


^  303  I'LEADINGS   OF    PLAINTIFF.  »-i4 

j  323.  Alleging  nonperformance.  When  performance  is  im- 
practicable, suck  iact  may  be  sliuwn  under  an  excuse  for  non- 
performance.--*^' As  from  sickness  or  death.-'^  Or  by  act  of 
law.-'*^  Or  by  casualty  of  fire.^-*^  In  such  cases,  the  excuse  for 
nonperfornumce  must  be  shown.-"*"*  11  peri'ormance  has  been 
prevented  or  interrupted  by  an  act  of  the  adverse  party,  or  where 
a  waiver  thereof  may  be  inferred,  an  averment  of  facts  consti- 
tuting tlie  excuse  is  sufficient.-"*-'''  In  such  cases  performance 
need  not  be  alleged.^"  Where  the  conditions  contained  in  the 
contract  have  been  modified,  or  plaint  ill'  has  become  excused 
from  them,  an  averment  of  performance  is  not  proper;  the  modi- 
fication or  excuse  should  be  stated. 2"*''^  For  under  a  complaint 
setting  out  a  contract  and  averring  its  performance  by  the  plain- 
tiff, evidence  in  excuse  for  nonperformance  is  not  admissible; 
yet  this  rule  becomes  of  little  importance  in  view  of  the  power  of 
amendment  given  to  the  court  by  the  Code.^^ 

240  "U'clfe  V.  Howes,  24  Barb.  174,  666. 

241  "U'olfe  v.  Howes,  24  Barl).  174,  G66;  Faby  v.  North,  19  id.  341. 

242  Jones  v.  Jiuld,  4  N.  Y.  411. 

243  Lord  v.  ■\\'heeler,  1  Gray,  282. 

244  Newcomb  v.  Brackett,  16  Mass.  166;  Baker  v.  Fuller,  21  Pick. 
318. 

245  For  example,  sec  Clarke  v.  Crandall,  27  Barb.  73;  Crist  v. 
Armour,  34  id.  378;  Rivara  v.  Ghio.  3  E.  D.  Smith,  2(j4;  Little  v. 
Mercer,  9  Mo.  216;  Burns  v.  Fox,  113  Ind.  205;  Mathis  v.  Thomas, 
101  id.  119. 

246  Oakley  v.  Morton,  11  N.  Y.  33;  Hosley  v.  Black,  26  How.  Pr. 
97:  Holmes  v.  Holmes,  9  N.  Y.  525. 

247  Oakley  v.  Morton,  11  N.  Y.  25;  O'Connor  v.  Dingley,  26  Cal.  21; 
Lanitz  v.  King,  93  Mo.  519;  Evarts  v.  Smucker,  19  Neb.  43;  Bo- 
gardns  v.  Insurance  CO.,  101  N.  Y.  329.  If  the  plaintiff,  in  a  suit 
on  a  contract,  pleads  performance  he  nmst  prove  it,  and  proof  of 
excuse  for  nonperformance  would  not  enable  him  to  recover  on 
such  a  pleading.  Daley  v.  Russ,  86  Cal.  114;  McDermott  v.  Grimm, 
4  Col.  App.  39;  but  see  West  v.  Insurance  Society,  10  Utah,  442; 
Insurance  Co.  v.  Dougherty,  102  Penn.  St.  568,  holding  that  where 
the  complaint  contains  a  general  allegation  of  the  performance  of 
a  condition,  proof  of  w-aiver  is  admissible  without  alleging  it. 

248  Cal.  Code  Civ.  Pro.,  §§  472,  473;  Hosley  v.  Black,  26  How. 
Pr.  U~.  Of  the  mle  requiring  full  performance,  except  where 
sufficient  excuse  is  shown,  see  Wolfe  v.  Howes.  20  N.  Y.  197;  75 
Am.  Dec.  388.  And  that  no  recovery  can  bo  had  for  part  perform- 
ance of  conditions  precedent,  consult  Sickles  v.  Pattison,  14  Wend. 
2.57;  28  Am.  Dec.  .527;  M'Millan  v.  Vanderlip,  12  .Tohns.  165;  7  Am, 
Dec.  299:  Reab  v.  Moore,  19  .Tohns.  3.'^7;  Lantry  v.  ParIsS,  8  Cow. 
63;  Oakley  v.  Morton,  11  N.  Y.  25;  62  Am.  Dec.  49. 


245  COMPLAINTS   IX    GEXERAL.  §  334 

§  324.  Alleging  concun-ent  acts.  In  au  action  for  breach  of 
contract,  the  performance  of  a  concurrent  act,  which  the  con- 
tract expressly,  or  by  implication,  devolved  ou  the  plaintiff,  must 
be  averred.^**  So  where  a  contract  is  executory,  a  performance, 
or  tender  of  performance,  or  a  readiness  and  willingness  to  per- 
form, on  the  part  of  the  plaintiff',  must  be  shown  in  the  com- 
plaint.2^^ 

A  tender  of  performance,  or  a  readiness  and  willingness  to 
perform,  is  a  substitute  for  the  general  allegation  of  perform- 
ance in  such  cases  as  it  may  be  required  It  may  also  be  alleged 
that  the  plaintiff  offered  to  perform.^^^  In  England,  a  general 
averment  of  readiness  and  willingness  is  sufiicient.^^  So  also 
in  Ohio.^^  And  such  tender  or  offer  of  performance  must  be 
proved.^*  But  an  offer  of  performance  is  of  no  effect  if  the 
person  making  it  is  not  able  and  willing  to  perform  according  to 
the  offer.2«« 

In  cases  where  the  performance  on  the  part  of  the  plaintiff 
depends  upon  acts  previously  to  have  been  done  on  the  part  of 
the  defendant,  an  averment  of  readiness  and  willingness  will  be 
sufficient.^*'  So  where  there  are  mutual  promises,  not  depend- 
ent on  each  other,  the  omission  to  state  in  the  declaration,  per- 
formance of  that  made  by  the  plaintiff',  is  cured  by  the  verdict.^'"'^ 

If  mutuality  exists  at  the  inception  of  the  contract,  or  at  the 
time  the  contingency  happens,  no  subsequent  changes  can  de- 
stroy the  contract,  if  the  party  has  performed  all  the  con- 
ditions on  his  part.^^     In  an  executory  contract  for  the  sale 

249  LestfT  v.  Jewert.  11  N.  Y.  4~}S;  Considei-ant  v.  Brisbane,  14 
How.  Pr.  487. 

250  Barron  v.  Frink,  30  Cal.  480;  Enslander  v.  Rogers,  41  id.  220; 
Van  Scliaick  v.  Winne,  IG  Barb.  94;  Beeoher  v.  Conradt.  13  N.  Y. 
JIO;  fi4  Am.  Dec.  53r>;  Bronson  v.  Wimau,  8  N.  Y.  188;  Tiuuey  v. 
Asliley.  ir,  Pick.  .540;  20  Am.  Dec.  020. 

2.M  S«-e  Williams  v.  Ilealey,  3  Den.  303;  Cvandall  v.  Clark,  7  Barl). 
100:  Clark  v.  Crandall.  27  id.  73. 

2.'.2  T{iist  v.  Nottrid.Lrc,  1  Ellis  &  Bl.  (Q.  B.)  00;  Bcutley  v.  Dawes, 
9  E.^ch.  (Wclsb..  II.  iV-  G.)  000. 

2.53  Swan's  PI.  2(Mi;  .Nathan  v.  Lewis.  1  Handy.  242. 
.    254  Coodwin  v.  Lynn,  4  Wash.  C.  C.  714. 

255  Cal.  Civil  Code,  g  140.5. 

2.'!r.  West  V.  Emmons.  5  .Tohns.  170. 

2ru  Corcoran  v.  Dougherty,  4  Cranch  C.  C.  205. 

258Sutrd.  on  Vend.  104;  1  Vcs.  218;  .Mortlock  v.  Bullcr,  10  Vos.  jun. 
31.5;  Lawrenson  v.  Butler.  1  Schoales  &  I-  10;  Walton  v.  CovilsoQ, 
1  McLean,  120. 


^  ;5-^'4  rLi:Ai)i^His  or  rLAiNTii-F.  246 

oi  ail  article  to  1)0  paid  for  on  delivery,  the  obligation  for  one 
party  to  pay,  aiul  ilu'  oilier  to  tieliver,  are  mutual  and  de- 
penilent;  ami  tlie  t^elli'r  must  show  that  he  was  ready  and  offered 
to  deliver  tlie  goods.-'"''  Kut  where  there  has  been  part  perform- 
ance, a  special  allegation  is  not  necessary.^*"'  In  cases  where 
mutuality  exists  in  the  conditions  of  a  contract,  neither  party 
can  maintain  an  action  against  the  other  for  a  breach  of  con- 
tract, without  showing  performance  or  tender  of  performance 
on  his  part.^^  But  where  the  covenants  of  an  agreement  are 
independent,  the  plaintiff  can  not  support  liis  action  as  to  them 
without  showing  performance  of  every  affirmative  covenant  on 
his  part,  and  in  such  a  case  it  is  competent  to  the  defendant 
to  prove  a  breach  of  such  as  are  negative.^^^ 

Thus  where  it  was  agreed  that  plaintiff,  in  consideration  of 
the  payment  of  a  certain  sum  and  the  delivery  of  certain  notes 
on  a  certain  day,  would  make  a  certain  assignment  to  defend- 
ant, plaintiff  in  an  action  to  recover  the  money  need  not  allege 
performance  or  offer  of  performance.^*"'^ 

But  if  notice  is  necessary  to  give  a  right  of  action,  such  notice 
must  be  specially  averred.^'''*  And  an  averment  of  facts  "  which 
defendant  well  knew  "  is  not  sufficient.^*^  Otherwise  if  knowl- 
edge only  is  necessary  to  fix  the  liability;  as  for  keeping  mis- 
chievous animals ;2®^  against  a  municipal  corporation  for  defect 
in  a  grating  over  an  area  in  a  sidewalk,-*"''''  and  other  like 
cases. 

259  Ban-on  v.  Frink,  30  Cal.  4S(l:  Gibbons  v.  Soott,  15  id.  284; 
1  Sandf.  n.  &  Ev.  190;  Enf;Iander  v.  Kojrers,  41  Cal.  420;  Con- 
sidoraut  v.  Brisbane,  14  How.  Pr.  4S7;  Dunham  v.  Pettee.  4  E.  D, 
Smith,  500;  Fickett  v.  Brice,  22  How.  Pr.  194. 

260  Grant  v.  Johnson,  5  Barb.  161;  Wallis  v.  Warren,  18  Law 
Jour.  Rop.  Ex.  449;  14  Law  Times,  108;  7  Dowl.  &  L.  60;  4  Ex.  364. 

261  Porter  v.  Rose.  12  Johns.  209;  7  Am.  Dec.  306;  Gazley  v.  Price, 
10  Johns.  267;  Parker  v.  Parmele,  20  id.  130;  11  Am.  Dec.  2.53; 
Topping  V.  Root.  5  Cow.  404;  Walden  v.  Davison,  11  Wend.  67;  Les- 
ter V.  .Tewett,  11  N.  Y.  453;  People  v.  Edmonds,  15  Barb.  3.50;  Culver 
V.  Burgher,  21  id.  324;  Daud  v.  King.  2  Pick.  155;  Fickett  v.  Brice, 
22  How.  Pr.  194;  to  the  same  effect,  Frey  v.  Johnson,  id.  316; 
Englander  v.  Rogers,  41  Cal.  420. 

262  Webster  v.  Wanen,  2  Wash.  C.  C.  456. 

263  Smith  V.  Belts,  16  How.  Pr.  251. 

264Benslo.v  v.   Atwid.   12  Cal.  231;  Colt  v.   Root,   17  Mass.   229; 
Hohai-t  V.  Hilliard,  11  Pick.  144. 
2«s  Col c-h ester  v.  Brooke,  7  Q.  B.  339;  S.  C,  .53  Eng.  Com.  L.  339. 
2««raireliild  v.  Benlley,  30  Barb.  147. 
267Mr.Ginity  v.  Mayor  of  New  York.  5  Duer,  074. 


24?  COMPLAINTS    IX    GENERAL. 


325 


So,  also,  whenever  a  request  is  necessary  to  give  a  party  a 
right  to  sue,  it  must  be  specially  averred ;2<^  and  where  the  stat- 
ute prescribes  conditions  precedent  to  the  acquirement  of  a 
right,  the  performance  of  those  conditions  must  be  specifically 
averred,  and  the  facts  showing  such  performance  must  be 
pleaded. ^^ 

But  in  an  action  by  a  purchaser  to  recover  money  paid  in 
part  execution  of  a  contract  rescinded  by  the  vendor,  an  alle- 
gation of  tender  or  readiness  to  pay  the  whole  price  is  not 
necessary.^^"  So,  on  a  contract  for  wheat  to  be  delivered  on 
demand,  it  was  not  necessaiy  to  aver  a  tender.^^  And  under  an 
averment  of  tender,  the  plaintiff  may  prove  a  waiver  of  it  by 
defendant.^^ 

§  325.  Alleging  breaoh  of  contract.  A  complaint  for  breach 
of  contract  must  state  a  breach  in  unequivocal  language.^^^ 
A  general  allegation,  however,  will  be  sufficient  to  admit  proof, 
and  will  only  be  obnoxious  to  a  motion  to  render  it  more 
certain.^'* 

Thus  where  the  covenant  describes  a  specific  act,  the  breach 
may  be  averred  in  the  language  of  the  covenant ;  but  i  f  a  num- 
ber of  acts  are  included  in  one  phrase,  the  complaint  must  set 
forth  the  breach  of  each  particular  act  upon  which  the  plaintiff 
.relies  with  particularity.^"^  For  when  a  party  relies  upon  any 
breaches  of  an  agreement  as  the  foundation  of  an  action,  he 
must  set  forth  in  his  pleading  sufficient  of  the  agreement  to 
make  it  appear  to  the  court  that  the  breaches  coiii])laiiir(l  of  do 
actually  exist,  and  to  what  extent.^"'^  If  the  promise  contained 
an  exception  or  proviso,  it  must  be  statcd.^'^     And  on  a  contract 

268  Ramsey  v.  Walthani.  1  Mo.  :^'X>;  Ferner  v.  Williams,  ;57  Barb.  9. 
2C9  ppople  V.  .Tackson.  24  Cal.  032. 

270  Main  v.  King,  8  Barb.  .')35;  Faiiclior  v.  Goodman,  29  id.  31G; 
McKnifilit  v.  Dunlop.  4  id.  .3(). 

271  Crosby  v.  "\Vatl<ins,  12  Cal.  8.5. 
272ii„lnie8  V.  Holmes,  9  N.  Y.  r)2'>. 

273  1  Van  Santv.  222;  Mintvv  v.  Bosse.  .30  Cal.  .570;  Sohonok  v. 
Naylor.  2  Dner,  f!7."i:  Van  Scliaick  v.  Wiiinc.  1('>  Barb.  89:  People  v. 
Central  Bac.  H.  K.  Co.,  1(\  Cal.  29:  Cnrliss  v.  Bnu^Miman,  S4  id.  21<;; 
Terre  Haute,   ete..  Co.  v.  Slierwood,    i:'.2   Ind.   129. 

274TrMnble  v.  Stihvell.  4   i:.    !>.   Smilli.   .".12. 

27S  Wolfe  V.   Liiyster,  1    Ibill,  lit".;   Brown  v.  Stebbiiis,    i   Hill,   154. 

270  I.yiicli   V.  Mniray,  21    How.    I'r.   1.54. 

277T,atliam  v.  Kntley.  2  l'.;irn.  iV  Cress.  20;  .Tones  v.  Cowley,  4 
Id.  440;  Tempany  v.  Burnand,  4  Camp.  20. 


^  ;?-^Joa  I'LliAlUNGS   OF    I'LAIXTIFF,  348 

containing  varions  nndortakings.  the  plaintilT  complaining  of 
the  hri'ai'li  of  one.  thereby  waives  any  right  as  to  tlie  otliers.-'^'* 

§  325a.  The  same  —  sufficiency  of  complaint  —  surplusage. 
AVhere  tiie  aetion  is  brought  to  redress  a  Avrong  committed 
by  tlie  breach  of  a  contract,  and  the  ijhiintiiif  only  seeks  to  re- 
cover the  general  damages  vvliicli  have  resulted,  he  states  a  good 
cause  of  action  whm  he  sets  up  the  contract,  states  the  facts 
which  constitute  the  breach,  and  alleges  generally  that  he  has 
been  damaged  in  a  speciiied  sum.^'^'-'  If  the  complaint  sets  up 
a  contract  and  alleges  a  breach  thereof,  a  demurrer,  on  the 
ground  that  the  complaint  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action,  is  not  w^ell  taken,  since  the  plain- 
tilf  is  entitled  to  nominal  damages  at  least.^*'  But  the  com- 
plaint in  a,n  action  to  recover  damages  for  the  breach  of  an 
alleged  contract  is  insufficient,  if  it  merely  alleges  a  promise 
without  averring  its  breach,  or  if  it  assigns  a  breach  of  some- 
thing which  is  not  alleged  to  have  been  promised.^^^  A  com- 
plaint showing  a  good  cause  of  action  is  not  bad  because  of  un- 
necessary averments  contained  in  it.  Such  averments  will  not 
vitiate  a  complaint  which  states  a  good  cause  of  action  exclu- 
sive of  them.^^^  Where  a  contract  is  fully  expressed  without 
abbreviations  used  therein,  they  may  be  disregarded  as  sur- 
plusage, if  they  are  meaningless.^^  So,  a  recital  in  the 
complaint,  in  an  action  upon  a  written  instrument,  that  the 
defendant,  "  being  indebted,"  executed  it,  is  unnecessary,  and 
may  be  rejected  as  surplusage.^'*  So,  in  a  Nevada  case,  where 
an  action  was  brought  to  recover  damages  for  breach  of  contract, 
it  was  held  that  the  averments  in  the  complaint  that  the  money 
expended  in  repairing  a  ditch  was  paid  by  the  plaintiff  "to 
defendant's  use,"  and  tlnit  "  the  defendant  promised  to  pay 
the  same,"  might  be  treated  as  surplusage,  and  that,  without 

278Chinn  v.  Hamilton,  Ilompst.  ^'^S. 

2T9City  of  Pueblo  v.  Griffin,  10  Col.  300;  School  District  v.  Ross, 
4  Col.  Apj).  49.3. 

280  Sunnyside  Land  Co.  v.  Brirljre  Railway  Co.,  20  Ore?.  .544;  and 
Bee  Wisner  v.  Barber.  10  id.  342;  Wilson  v.  Clark.  20  Minn.  307. 

2fti  I»u  Rrutz  V.  .Tessup,  70  Cal.  75.  So  of  a  complaint  which 
misfonstnios  the  r-ontract  sued  on,  and  which  contains  no  allegation 
entitlinfr  the  plaintiff  to  recover  upon  it.  McPhee  v.  Young,  13 
Col.  .so. 

2S2Byard  v.  Harkrider,  103  Ind.  376. 

283  Borrj-  V.  Kowalsky,  9.5  Cal.  134. 

284  Poirier  v.   Gravel,  S8  Cal.   79. 


249  COMPLAIXTS   IK    GEXERAL.  §  32G 

these  words,  the  facts  alleged  in  the  complaint  constituted  a 
cause  of  action  for  damages  for  hreach  of  contract.^^  But 
statements  of  facts  iu  a  complaint,  Avhich  are  in  themselves 
material  and  relevant  to  the  cause  of  action,  can  not  be  regarded 
as  surplusage,  although  they  overthrow  the  pleading.^*' 

§  326.  Alleging  special  damages.  For  the  breach  of  a  con- 
tract an  action  lies,  though  no  actual  damages  be  sustained.^^ 
And  damages  which  materially  and  necessarily  arise  from  the 
breach  of  the  contract  need  not  be  stated,  as  they  are  covered 
by  the  general  damages  laid  in  the  declaration;  but  special 
damages  must  be  specially  stated.^^^  It  is  sulhcient,  so  far  as 
the  demurrer  is  concerned,  to  aver  in  the  complaint  the  contract, 
the  breach  complained  of,  and  the  general  damages.^^  But  the 
omission  to  aver  specially  the  damages  laid  in  the  complaint,  is 
waived  by  going  to  trial  without  objection.^^^  In  an  action  for 
special  damages  for  injuries,  such  damages  as  arc  the  natural 
although  not  the  necessary  result  of  the  injury  must  be 
specially  stated,  and  the  facts  out  of  which  they  arise  must  be 
specially  averred  in  the  complaint.^^     Thus  a  jury  can  not  give 

2S5  Orr  Water  Ca  v.  Reno  Water  Co.,  19  Nev.    60. 

280  Knopf  v.  Morel,  111  lud.  570.  Stipulations  introduced  into 
the  contract  as  provisos  in  favor  of  the  defendant  need  not  be 
nej?atived  by  the  plaintiff  in  his  complaint  in  an  action  for  breach 
of  the  contract;  to  be  talceu  advantage  of,  such  stipulations  must 
be  pleaded  by  the  def-endant.    Hudson  v.  Archer,  4  S.  Dalv.  128. 

287McCarty  v.  Beach,  10  Oal.  4G1;  Hancock  v.  Hubbell.  71  id.  537; 
and  see  §  325a,  ante. 

288  Bas  v.  Steele,  3  Wash.  C.  C.  381 ;  Mitchell  v.  Clarke,  71  Cal. 
103;  Tucker  v.  Parks,  7  Col.  02;  City  of  Pueblo  v.  Griffin,  10  id.  306; 
Tahoe  Ice  Co.  v.  T'nion  Ice  Co.,  109  Cal.  242;  Ennis  v.  Tublishing 
Co.,  44  Minn.  105. 

28f»BarlM'r  v.   Cazalis.  30  Cal.   92. 

200  Ncary  V.  Bostwick,  2  Hilt.  514. 

2!)i  Stevenson  v.  Smith,  28  Cal.  102;  87  Am.  Dec.  107;  Cole  v. 
Swanston,  1  Cal.  51;  >'>2  Am.  Dec.  288;  Squier  v.  Gould,  14  Wend. 
159;  Strang  v.  Whitehoad,  12  id.  64;  1  Chit.  PI.  371;  Sedg.  on  Dam. 
07;  Say  on  Dnm.  313;  Tuolniinie  Water  Co.  v.  Colnmbia  &  Stanislaus 
Water  Co..  10  Cal.  193;  M;illniy  v.  Thomas.  98  id.  <VM :  Grandona 
V.  Lovdal,  70  id.  KTI;  Sndth  v.  Railway  Co.,  98  id.  21it.  A  com- 
plaint showing  a  breach  of  contract  by  tlie  defendant  in  refusing 
to  pay  an  agreed  com pcns.it ion  to  tlie  idaintiff  ;is  attorney,  wlio  waa 
prevented  by  the  defendant  from  fidly  perforndng,  !ind  alleging 
that  a  certain  sum  of  money  and  interest  Is  due  under  the  con- 
tract. Is  not  InsntTicient    In  not  containing  a  specific  allegation  of 

32 


g  327  n.KAhlMiS    OF    I'LAJNTIFF.  250 

lOMiponsation  for. loss  oi'  time,  ivimiiu  ratiun  I'or  wages  paid, 
t'tc.  iiiiK'ss  there  is  aii  allegation  in  llie  ecnnplaint  as  to  these 
luatters.-"- 

The  want  of  any  averment  ot  special  damages  can  not  be 
reached  by  demurrer.  Such  averment  is  only  necessary  where 
the  right  of  action  itself  depends  upon  the  special  injury  re- 
ceived.-"^ Matters  in  aggravation  of  damages  need  not  be 
alleged;  the  quo  aniino  may  bo  proved  without  being  pleaded,^^* 
and,  therefore,  should  not  be  pleaded.-'-*^ 

§  327.  Allegations  in  actions  for  injuries  resulting  from 
negligence,  isegligeucc  is  the  omission  to  do  something  which 
a  reai>onable  man,  guided  by  those  considerations  which  or- 
dinarily regulate  the  conduct  of  human  affairs,  would  do;  or 
doing  something  which  a  prudent  and  reasonable  man  would 
not  do.  It  is  not  absolute  or  intrinsic,  but  is  always  relative  to 
some  circumstances  of  time,  place,  or  person.-"*'  The  prudence 
and  propriety  of  men's  actions  are  not  judged  by  the  event, 
but  by  circumstances  under  which  they  act.  If  they  conduct 
themselves  with  reasonable  prudence  and  good  judgment,  they 
are  not  to  be  made  responsible  because  the  event,  from  causes 
which  could  not  be  foreseen  nor  reasonably  anticipated,  has 
disappointed  their  expectations.^'  Where  the  safety  of  human 
life  is  in  question,  a  very  high  degree  of  care  is  required.^"^ 
But  a  casualty  happening  without  the  will  and  without  the 
negligence  or  other  default  of  the  party,  is,  as  to  him,  an  inevita- 

(lamages,  the  facts  beinj?  stated  which  in  law  constitute  his 
(lania^'os  and  their  uicasure.    Bartlett  v.  Savings  Bank,  79  Cal.  218. 

292  Dabovich  v.  Enieric,  12  Cal.  171. 

2t»3  McCarty  v.  Beacli,  10  Cal.  4ai.  "When  tho  complaint  contains 
no  avennout  which  would  sustain  a  recovery  for  tenipoi-ary  or 
si>ecial  dania.ircs  a  question  as  to  such  damages  should  not  be  sub- 
mitted to  tlic  jmy.     Denver,  etc.,  R.  11.  Co.  v.  Ditch  Co..  19  Col.  867. 

2it4  Rust  ell  V.  Macquister,  1  Camp.  49;  Slack  v.  IMcChesney,  2 
Yates.  47.3;  Wallis  v.  Mease,  3  Binney,  546;  Keau  v.  McLaughlan, 
2  Serg.  &  R.  469. 

2s»r>Warno  v.  Croswell,  2  Stark.  4.17;  Moloney  v.  Dows,  !.">  How. 
rr.  2f^'):  see,  however,  Root  v.  Foster,  9  id.  37;  Brewer  v.  Temple, 
I.'".  Id.  2S6. 

S!'"  Riehardson  v.  Kior.  34  Cal.  63;  91  Am.  Dec.  681;  and  see 
Barrett  v.  Sontjieru  I'ac.  Co..  91  Cal.  296;  2.5  Am.  St.  R(>p.  186; 
Gunn  V.  Railroad  Co..  36  W.  Va.  16,5;  .32  Am.  St.  Rep.  842;  Tetherow 
v.  Railroad  Co.,  98  Mo.  74;  14  Am.  St.  Rep.  617. 

2!'TThe  Amethyst,  Davics.  20;  2  N.  Y.  Leg.  Obs.  312. 

208  Castle  V.  Duiwea.  32  Barb.  480. 


251  COMPLAINTS    IX    GEXEKAL.  §  327 

able  casualty.^^  Ordinary  care  or  common  prudence  is  such 
a  degree  of  care  and  caution  as  will  be  in  due  proportion  to  the 
injury  or  damage  to  be  avoided.^*^  Thus,  the  question  of 
negligence  must  depend  upon  the  facts  of  the  case,  and  it  is 
not  an  abstract  question  of  law.^"^  Hence  it  will  not  be  neces- 
sar}'  in  a  complaint  to  aver  the  degrees  of  negligence  in  each 
case,  as  they  are  matters  of  proof  to  be  decided  from  the  facts 
stated.^^^  Negligence  implies  gross  as  well  as  ordinary  negli- 
gence; and  a  general  averment  of  negligence  is  all  that  is  re- 
quired.^**^  If  an  employment  requires  skill,  failure  to  exert  it 
is  culpable  negligence,  for  which  an  action  lies.^*'^  The  negli- 
gence for  which  a  recovery  is  sought  must  be  alleged  in  the 
complaint.^*'''  And  it  is  held  in  some  jurisdictions  that  the 
plaintiff  must  state  the  facts  constituting  his  cause  of  action. 
He  must  allege  in  his  complaint  the  acts  or  omissions  of  the  de- 
fendant upon  which  he  bases  his  right  to  recovery,  and  show 
that  they  occurred  through  or  by  the  negligence  of  the  defend- 
ant. A  general  allegation  of  negligence  is  held  not  to  charge 
any  fact.^°® 

In  New  York,  in  an  action  for  damages  caused  by  negligence, 
it  must  appear  that  the  plaintiff's  acts  or  omissions  did  not  con- 
tribute in  any  degree  to  the  result.^*^^     The  rule  th.at,  where  the 

299  1  T.  R.  27;  Hodgson  v.  Dexter,  1  Cranch  C.  C.  109;  The  Lotty, 
Olc.  329. 

300  Ernst  v.  Hudson  River  R.  R.  Co.,  3."»  N.  Y.  9;  90  Am.  Deo.  761. 

301  Baxter  v.  Second  Ave  R.  R.  Co.,  30  How.  Pr.  219;  Welling  v. 
Judge,  40  Barb.  193. 

302  Xolton  V.  Western  R.  R.  Co.,  15  X.  Y.  444;  09  Am.  Dec.  623; 
3."!  Barb.  .'?S9. 

303  Oldfield  V.  X.  Y.  &  Harlem  R.  R.  Co.,  14  X.  Y.  310;  House  v. 
Meyer,  100  Cal.  r)92. 

304  The  New  World  v.  King,  10  How.  (U.  S.)  469.  in  which  case 
the  theorj'  of  the  three  degrees  of  negligence  is  examined.  As  to 
what  constitutes  negligence,  see,  also,  Xeedham  v.  S.  F.  &  S.  J. 
R.  R.  Co.,  37  Cal.  4m);  Schicrhold  v.  X.  B.  &  M.  R.  R.  Co.,  40  id. 
447;  Karr  v.  I'arks,  id.  ISS;  McCoy  v.  Cal.  I'ac.  R.  R.  Co.,  id. 
532;  6  Am.  Rep.  623. 

30.^  Rosewam  v.  Washington,  etc.,  Min.  Co.,  94  Cal.  219. 

•■'.or,  Woo<lward  v.  Oregon,  etc.,  Xav.  Co.,  IS  Oreg.  2S9;  McPherson 
r.  I'acific  Bridge  Co..  20  id.  4S(!;  and  see  Current  v.  Railroad  Co., 
S6  Mo.  62;  Jones  v.  White.  JM)  Ind.  2.55;  Kailway  Co.  v.  Wynant, 
UtO  id.  160;  Smith  v.  Butlner,  90  Cal.  95. 

30- Wilds  v.  Hudson  River  R.  R.  Co.,  24  \.  Y.  4:\(>;  2\  Ib.w.  Pr. 
97;  Ooruscli  v.  Creo.  H  Com.  Bench  rx.  S.i  572.  .59S;  I  x-lalieid  v. 
T'nion  Ferry  Co.,  10  Bosw.  210;  Chisholm  v.  State,  141  X.  Y.  246; 


g  3-.'7  I'LEADlNliS    OF    I'LAlNllFl'.  Xl52 

injury  has  boon  oausod  by  the  noj^ligenoe  oi'  the  party  injured, 
ho  has  no  redress,  luis  been  eoniniented  on  and  quaiilied  in 
Califtn-niar^'^'*  where  it  is  also  held  that  the  negligence  whieli 
ilisabk's  a  plaintill:  from  recovering  must  be  a  negligence  whicii 
direollv  or  by  natural  eonsequence  conduces  to  the  injury.  It 
must  have  been  the  proximate  cause,  that  is,  negligence  at  the 
time  the  injury  happened.^*^^ 

It  is  not  necessary  to  allege  in  the  complaint  in  an  action  for 
damages  to  either  person  or  property  that  the  plaintiff  is  with- 
out fa\dt,^^°  as  it  may  fairly  be  presumed  that  the  plaintiff 
exercised  usual  care  for  his  own  safety.^^^  The  right  to  recover 
damages  for  injuries  to  the  person  depends  upon  two  concur- 
ring facts:  1.  The  party  claimed  to  have  done  the  injury  must 
be  chargeable  with  some  degree  of  negligence,  if  a  natural  per- 
son; if  a  corporation,  with  some  degree  of  negligence  on  the 
part  of  its  servants  or  agents;  2.  The  party  injured  must  have 
been  entirely  free  from  any  degree  of  negligence  which  con- 
tributed proximately  to  the  injury.^^^  where  negligence  con- 
sists in  the  omission  of  a  duty,  the  facts  relied  on  as  implying 
that  duty  must  be  alleged.^'i^  The  allegation  that  the  injury 
continued  to  be  done  from  time  to  time,  from  the  date  of  the 
wrongful  act  until  the  commencement  of  the  suit,  claiming 
special  damages  as  a  matter  of  aggravation,  need  not  state  the 
time  or  times  when  the  damages  Avere  sustained,  as  the  legal 

Francisco  v.  Railroad  Co.,  78  Hun,  13;  Weston  v.  City  of  Troy,  139 
N.  Y.  281. 

308  lUchniond  v.  Sacramento  Val.  R.  R.  Co.,  18  Cal.  351. 

309  Kline  v.  Central  Tac.  R.  R.  Co.,  37  Cal.  400;  99  Am.  Dec.  282; 
Needham  v.  S.  F.  &  S.  J.  R.  R.  Co..  37  Cal.  409;  Flyun  v.  Same,  40 
id.  14;  C  Am.  Rep.  59.5;  Maumus  v.  Champion,  40  Cal.  121;  Hearue 
V.  Southern  Pae.  R.  R.  Co.,  50  id.  482. 

310  Wolfe  V.  Supervisors  of  Richmond,  11  Abb.  Pr.  270;  19  How. 
Pr.  370;  Johnson  v.  Improvement.  Co.,  13  Wash.  St.  455;  Melhado 
V.  Transp.  Co.,  27  Hun,  99;  Coughtiy  v.  Railroad  Co.,  21  Orej?.  245; 
Johnston  v.  Railroad  Co.,  23  id.  94;  Durgin  v.  Neal,  82  Cal.  595. 
Otherwise  in  Indiana.  Braunen  v.  Road  Co.,  115  Ind.  115;  7  Am.  St. 
Rep.  411;  and  Oklahoma.  Guthrie  v.  Nix,  3  Old.  136. 

311  Johnson  v.  Hudson  River  R.  R.  Co.,  20  N.  Y.  05;  75  Am.  Dec. 
375. 

312  See  eases  cited  al>ove. 

313  City  of  Buffalo  v.  Ilolloway,  7  N.  Y.  493;  57  Am.  Dec.  550; 
Taylor  v.  Atlantic  Mutual  Ins.  Co.,  2  Bosw.  106;  Congreve  v. 
Morgan,  4  Duer,  439:  Seymour  v.  Maudox,  10  Q.  B.  326;  S.  C, 
71  Emr.  Com.  L.  R.  326;  and  see  McGinity  v.  Mayor,  etc.,  5  Duer, 
674;  Gregory  v.  Oaksmith,  12  How.  Pr.  134. 


253  COMPLAINTS   IN    GENEKAL.  §  328 

effect  of  the  allegation  is  that  they  were  sustained  when  the 
wrongful  act  was  committed,  and  on  divers  days  between  that 
time  and  the  commencement  of  the  suit.^^^ 

§  328.  Judgments,  how  pleaded.  In  pleading  a  judgment, 
and  especially  of  a  court  of  general  jurisdiction,  it  is  not  neces- 
sary to  state  the  facts  conferring  jurisdiction,  but  such  judg- 
ment may  be  stated  to  have  been  duly  given  or  made,  and  if 
controverted,  the  facts  conferring  jurisdiction  must  be  estab- 
lished on  the  trial.^^^  In  California,  under  the  section  cited 
below,  this  rule  applies  to  all  judgments  or  other  determina- 
tions of  a  court,  officer,  or  board.  It  was  formerly  held  that  in 
pleading  the  judgment  of  a  court  of  limited  jurisdiction,  it  is 
necessary  to  set  forth  the  facts  which  give  jurisdiction,^^^  as  the 
law  presumes  nothing  in  favor  of  their  jurisdiction.^"  The 
decisions  in  Xew  York  seem  to  bear  the  other  way  on  this  point, 
and  would  appear  to  conform  more  nearly  to  the  language  of 
the  statute  than  the  early  California  decisions.  There,  it  seems, 
it  is  no  longer  necessary  to  state  the  facts  conferring  jurisdic- 
tion on  a  court  or  officer  of  limited  jurisdiction.^^^  If  it  be 
denied,  jurisdiction  and  all  jurisdictional  facts  must  be  proved.^^^ 
So  held  in  pleading  an  insolvent  discharge.^^" 

In  pleading  a  judgment,  the  precise  words  of  the  record  need 
not  be  observed,  and  surplusage  or  immaterial  omissions  in 
matters  of  sulDstance,  in  such  pleas,  are  attended  with  no  other 
consequences  than  in  other  cases.     But  in  matters  of  descrip- 

314  McConnel  v.  Kibbo.  ?,:i  111.  17.").  Daniajies  ouly  which  are  not 
the  necessary  result  of  the  injuiy  nvust  be  specially  pleaded.  The 
future  and  permanent  effect  of  injuries  necessarily  resultiuR  to  the 
plaintiff  from  the  nefrlifience  of  the  defendant  need  not  be  siKH-ially 
alleged  in  order  to  warrant  a  reeoveiy  therefor,  but  are  recoverable 
under  the  general  ad  damnum  clause.  Treadwell  v.  Whittier,  80 
Cal.  ."»74;  13  Am.  St.  Rep.  IT.'^. 

315  Cal.  Code  Civ.  Pro.,  §  4.W;  N.  Y.  Code  Civ.  Tro.,  §  532;  Nevada 
Code,  §  r»9;  Idaho,  §.  HO;  Anzona,  §  59;  Oregon,  §  85;  Low  v. 
Hm-ro\v8,  12  Cal.  181;  IIans<om  v.  Tower,  17  id.  518;  Hunt  v. 
Dutclicr,  13  How.  Vv.  .538;  Clio(iuotte  v.  Artet,  GO  Cal.  504;  Edwards 
V.   Ilellings,  UU  id.   214. 

3u;  Smitli  v.  Andrews.  It  Cal.  <',.".2. 

31T  Swain  v.  Chase.  12  Cal.  2s;i;  Rowley  v.  Howard,  23  id.  403; 
McDonald  v.  Katz.  31   Id.  K'.'.t:  l>nt  8<'c  Cal.  Code  <'iv.  Tru.    fs  456. 

aiswiiec'lcr  v.  Diilvin.  12  I  low.   I'r.  .542. 

3inid.;  sec  Wise  v.   I.oring.  54    Mo.   .\i)p.  2.50. 

•'»2o  TJvingston  v.  Oak.sjnifli,  13  .\lil>.  I'r.  1.".3;  Carter  v.  Koezley, 
11  id.  147;  per  contra,  McDonnld  v.  Kalz,  31   Cal.  100. 


§  3"J0  rLEAi)i:N(is  or  i-laiistiff.  254 

tiou,  the  record  produced  must  conform  strictly  to  the  plea.-'-^ 
lUit  this  section  does  not  refer  to  foreign  judgments,  and  a 
general  averment  of  jurisdiction  of  a  foreign  tribunal  is  not 
sullicient;-'^  and,  therefore,  facts  showing  jurisdiction,  both  of 
person  and  subject-nuitter,  must  be  stated.^^  But  in  California, 
where  the  transcript  of  the  judgment  shows  the  jurisdiction  of 
the  court  on  its  face,  it  is  not  necessary  to  aver  jurisdiction.*-'* 
A  judgment  of  the  Probate  Court  may  be  pleaded  in  the  mode 
prescribed  by  the  statute.*^ 

§  329.  Statutes,  how  pleaded.  Pleading  a  statute  is  merely 
stating  the  facts  wliich  bring  a  case  within  it,  without  making 
mention  or  taking  any  notice  of  the  statute  itself.  Counting 
■upon  a  statute  consists  in  making  express  reference  to  it,  as  by 
the  words,  "'  against  the  form  of  the  statute,"  or  "  by  force  of 
the  statute  in  such  case  made  and  provided."  Reciting  a  statute 
is  quoting  or  stating  its  contents,  and  either  form  may  be 
adopted  by  the  pleader.^^^  In  pleading  a  private  statute,  or 
right  derived  therefrom,  it  shall  be  sufficient  to  refer  to  such 
statute  1)y  its  title  and  the  day  of  its  passage,  for  the  court  to 
take  judicial  notice  thereof.*^  An  averment  that  the  statute 
Zi'as  passed  is  sufficient.*^ 

321  Whitaker  v.  Bramson,  2  Paine,  209;  compare  Ricldle  v.  Potter, 
1  Craneh  C.  C.  288. 

322  Hollister  v.  HoUistcr,  10  How.  Pr.  539;  citing  Barnes  v. 
Harris.  3  Barb.  003;  Ayres  v.  Covill,  18  id.  200;  Bemet  v.  Wisner, 
1  N.  Y.  Code  R.  (N.  S.)  143. 

323  McLaughlin  v.  Nichols,  13  Abb.  Pr.  244.  But  in  Halsted  v. 
Blaclv,  17  Abb.  227,  the  contraiy  is  held.  Compare  De  Nobele  v. 
Lee.  01  How.  Pr.  272.  Sntticicnoy  of  complaint  in  an  action  upon  a 
Canadian  judgment.  See  Wright  v.  Chapin,  74  Hun,  521;  S.  C, 
31  Abb.  X.  C.  137. 

324  Low  V.  Burrows,  12  Cal.  181;  Bronzan  v.  Drobaz,  93  id.  047. 
In  an  action  upon  a  judgment,  the  complaint  must  show  that  a 
final  judgment  was  recovered,  and  an  allegation  thai  in  the  prior 
action  the  court  "  adjudged  "  that  the  defendant  should  pay  to  the 
plaintiff  a  certain  sum  of  money,  without  the  use  of  the  word 
"  judgment."  is  insufficient  to  show  a  cause  of  action.  p]dwards 
V.  Hellings,  99  Cal.  214;  and  see  Weller  v.  Dickinson,  93  id.  lOS. 

32^  Beans  v.  Emanuelli,  .30  Cal.  117, 

326  Gould's  PL  40.  note. 

327  Cal.  Code  Civ.  Pro.,  §  41'>9;  X.  Y.  Code  Civ.  Pro.,  §  ,^).30;  Idaho, 
§  01;  Nevada,  §  01;  Arizona,  §  01;  Oregon,  §  87;  1  Van  Santv.  270; 
r>  Sandf.  1.^3. 

328  Wolfe  V.  Supervisors  of  Richmond,  11  .Abb.  Pr.  270. 


255  COMPLAIXTS    IX    GEXEKAL.  §  329 

In  pleading  an  act  of  the  legislature,  the  title,  being  no  part 
of  an  act,  need  not  be  recited;^^  but  where  a  party  refers  to  an 
act  merely  by  the  title,  he  thereby  makes  the  title  material,  and 
must  recite  it  correctly.^^*^  But  when  a  pleader  wishes  to  avail 
himself  of  a  statutory  privilege  or  right  given  by  particular 
facts  he  must  show  the  facts;  and  those  facts  which  the  statute 
requires  as  the  foundation  of  the  action  must  be  stated  in  the 
complaint.^^^  It  is  safest  to  adopt  and  follow  the  very  words  of 
the  law;^'"^^  as  the  court  takes  judicial  notice  of  the  law,  though 
the  statute  may  be  referred  to  in  some  cases  to  avoid  ambiguity 
and  create  a  certainty  as  to  the  relief  demanded,  as  where  the 
plaintiff  has  his  election  to  sue  for  a  penalty  given  by  a  statute, 
or  to  bring  his  action  simply  for  the  debt.^^^ 

"With  reference  to  acts  regulated  by  the  provisions  of  a  stat- 
ute, as  of  the  Statute  of  Frauds,  it  is  sufficient  to  use  such 
certainty  of  allegation  as  was  sufficient  before  the  statute.  So, 
on  a  promise  to  answer  for  the  debt  or  default  of  another,  it  is 
not  necessary  in  the  complaint  to  aver  that  the  promise  was  in 
writing;^^'*  or  in  an  action  on  a  contract  relating  to  real  estate.^^^ 

If  a  statute  should  contain  exceptions  in  the  enacting  clause, 
the  plaintiff  must  clearly  show  that  the  defendant  is  not  within 
the  exception  ;^^*'  unless  it  be  matter  of  defense,  in  which  case 

329  Eckert  v.  Head.  1  Mo.  593. 

330  Id. 

331  Dye  V.  Dye.  11  Cal.  ir>,3;  Denver,  etc.,  R.  R.  Co.  v.  DeGraff, 
2  Col.  App.  42;  but  see  Gimniy  v.  Doane,  22  Cal.  (i.'W.  where  the 
api)lkation  of  the  rule  laid  down  iu  Dye  v.  Dye  is  doubted.  In 
Himmelman  v.  Danes,  35  Cal.  448,  the  distinction  is  drawn  between 
pleadinpr  the  performance  of  conditions  precedent  under  a  contract 
and  conditions  prescribed  by  a  statute,  holding  tliat  the  latter  uuist 
be  alleged  speciallj-.  See,  also.  Yertore  v.  AVlswall.  ir>  How.  Pr. 
8;  Brown  v.  Harmon,  21  Rarb.  ."►OK;  Drowne  v.  Stimpson,  2  ]Mass. 
444;  Soper  v.  Haiward  Colk'trc,  1  Pick.  ITS;  .\iistiii  v.  Goodrich.  40 
N.  Y.  2(50. 

332  Ford  v.  Rabrock,  2  Sandf.  523;  Tlionias  v.  T'eoiiie.  19  \Yond. 
480;  Cole  v.  .Tessup,  10  How.  Pr.  515;  overruling  Fowler  v.  Hunt, 
10  .Johns.  404. 

33:5  City  of  T'tica  v.  Richardson.  0  Hill.  300. 

334  Wakf'field  v.  Groonliood.  29  Cal.  597;  Stern  v.  Drinker,  2  E.  D. 
Smith.  400;  Hilliard  v.  Anslin,  17  P.arb.  141;  lOtlii^i:  v.  Yanderlyn. 
4  Johns.  2.''.7. 

33r>  Livingst(»n  v.  Smitli,  It  How.  ]'y.  492;  Reynolds  v.  Dunkirk 
K.  R.  Co..  17  P.arb.  i;i7;  ( 'li;iin|.liii  v.  I';irisli.  11   Paig(>.  40S. 

330  1  '|-.  It.  144;  r,  id.  .-,59:  1  Hast.  tWO;  2  Chit.  .522;  Ronnott  v. 
Hurd,  3  .Johns.  4.38:  Teel  v.  I'onda.  4  id.  304;  Hart  v.  Cleis,  8  id.  41; 


g  330  I'LEADl^GS   OF    PLAINTIFF.  25G 

the  burcloii  oi"  prool'  being  ou  the  defendant  the  plaintilf  need 
not  allege  it  in  the  complaint,  as  the  plaintiil  need  not  allege 
anything  in  antieipation.^^^  Numerous  violations  of  the  same 
subdivision  ol'  a  section  of  a  statute  may  be  alleged  in  one 
count ;•'•'•''  but  separate  counts  must  be  used  for  violations  of 
separate  subdivisions.^^*^ 

In  penal  actions  founded  on  statutes,  facts  constituting  the 
oll'ense  must  be  set  out,  and  it  must  be  stated  as  a  substantive 
allegation  that  the  oifense  was  committed  against  the  form  of 
the  statute.^"*"^  As  a  general  rule,  a  scienter  need  not  be 
averred.^"*^  In  remedial  actions  founded  on  statutes,  such  aver- 
ments must  be  made  as  are  necessary  to  bring  the  case  within 
the  statute,"^'*^  as  remedies  in  derogation  of  the  common  law 
must  be  strictly  pursued.^*^ 

§  330.  Foreign  statutes,  how  pleaded.  Where  the  plaintiff 
relies  on  the  statute  laws  of  another  state,  he  must  aver  those 
laAvs  in  his  pleadings  in  the  same  manner  as  other  facts.^^^ 
Thus,  to  plead  that  a  contract  is  void  by  foreign  usury  laws,  the 
laws  should  be  stated;  and  the  facts  which  render  the  contract 

Sheldon  v.  Clark.  1  id.  513;  Burr  v.  Van  Buskirk.  3  Cow.  2G3;  Foster 
V.  Hazen,  12  Barb.  547;  First  Baptist  Church  v.  Utica  &  Schenec- 
tady K.  R.  Co.,  G  id.  313;  Williams  v.  Insurance  Co.  of  North 
America.  9  How.  Pr.  365;  Harris  v.  AVhite,  81  N.  Y.  532;  Burnett  v. 
Mai-kkT,  23  Orejr.  436;  see  Rowell  v.  Janvrin.  151  X.  Y.  tK). 

337Canfield  v.  Tobias,  21  Cal.  349;  Radcliffe  v.  Rowley,  2  Barb. 
Ch.  23;  Bell  v.  Wallace,  81  Ala.  422. 

33SLongworthy  v.  Knapp,  4  Abb.  Pr.  115;  People  v.  McFadden, 
13  AVend.  396;  Gaffney  v.  Colvill,  6  Hill,  567. 

330  See  cases  cited  in  last  note. 

340  Levy  v.  Gowdey.  2  Allen.  321;  Poabody  v.  Hayt.  10  Mass.  36; 
Nichols  V.  Squire,  5  Pick.  168;  Haskell  v.  Moody,  9  id.  162;  Reed  v. 
Norlhfield,  13  id.  99. 

3-11  Bayard  v.  Smith,  17  Wend.  88;  Gaffney  v.  Colvill.  6  Hill,  567. 

342  Root!  V.  Northficld.  13  t»ick.  94;  Worster  v.  Canal  Bridge,  16 
id.  .>41;  Read  v.  Chelmsford,  id.  128;  Mitchell  v.  Clapp,  12  Cush. 
278. 

343  steel  V.  Steel,  1  Nev.  27. 

344  Throop  v.  Hatch,  3  Abb.  Pr.  25;  Phinney  v.  Phinney,  17  How. 
Pr.  197;  Tliatr-her  a-.  MoiTis,  11  N.  Y.  437;  Monroe  v.  Douglass,  1 
Seld.  447:  Hutchison  v.  Patrick,  3  Mo.  65;  Ruso  v.  Mutual  Benefit 
Ins.  Co..  2.3  N.  Y.  .".16;  Bean  v.  Briggs,  4  Iowa,  464;  Walker  v.  Max- 
well. 1  Mass.  104:  Balfour  v.  Davis.  14  Orog.  46:  National  Bank  v. 
I.ang.  2  N.  Dak.  66:  Williams  v.  Finlay,  40  Ohio  St.  342;  and  see 
Andrews  v.  Herriott.  4  Cow.  510,  note. 


357  COMPLAINTS    IX    GEXERAL.  §  331 

void  according  to  them  slioukl  be  alleged.''''*^  And  the  same 
rule  applies  to  municipal  laws  and  ordinances. ^^^  To  show  due 
diligence  in  suing  on  a  foreign  debt,  the  laws  of  such  state 
regulating  the  contracts  must  be  averred.^^'^  Pleading  foreign 
statutes  by  their  titles  and  dates,  or  statement  of  their  general 
provisions  and  requirements,  is  insufficient.^'*^  But  in  the 
courts  of  the  United  States,  no  averment  need  be  made  in 
pleading,  in  respect  to  the  laws  of  the  several  states,  which 
would  not  be  necessary  within  the  respective  states. ^'^^ 

§  331.  Statutes  of  limitations,  how  pleaded.  Facts  taking 
the  case  out  of  the  Statute  of  Limitations  must  be  specially  set 
out  in  the  complaint.^^"  A  failure  to  plead  it  is  a  waiver  of 
the  same.^^^  For  if  it  appear  on  the  face  of  the  complaint  that 
the  claim  is  barred,  and  no  facts  are  alleged  taking  the  demand 
from  the  operation  of  the  statute,  the  complaint  is  defective, 
and  demurrer  lies.^^^  So,  if  fraud  be  alleged  as  committed 
more  than  three  years  before  the  commencement  of  the  action, 
that  period  being  the  limitation  prescribed  by  our  statute,  the 
plaintiff  must  allege  discovery  at  a  period  bringing  him  within 
the  exception.     It  is  not,  however,  in  general,  necessary  for 

345  Curtis  V.  Masten,  11  raijre,  1.5:  inniham  v.  Ilolloway,  3  Okl. 
244. 

346Harker  v.  Mayor  of  New  York,  17  Wend.  199;  People  v.  Mayor 
of   New  York,  7  How.  Tr.  81:  Richter  v.  IIaii)t>r,  95  Mich.  221. 

347  Mendeiihall  v.  Gately.   18  Ind.  149. 

348Throop  V.  Hatch.  3  Abb.  Pr.  23;  Phinney  v.  Phinney,  17  How. 
Pr.  197;  Carey  v.  Cincinnati,  etc.,  R.  R.  Co.,  5  Clarke  (Iowa),  3.57. 
It  is  the  safer  practice,  in  pleading  the  statute  of  another  state, 
to  set  out  a  copy  thereof  in  the  pleadinj?,  though  it  has  been  held 
sufficient,  as  against  a  general  demuirer,  to  allege  the  substance  of 
the  statute.  Minneapolis  Harvester  Works  v.  Smith,  ;>4  N.  W.  Rep. 
973. 

340  Pennington  v.  Gibson.  10  How.  (U.  S.)  05.  General  acts  of 
CongH'Ss  need  not  be  specially  ])leade(l.  Murray  v.  City  of  Butte, 
7  Mont.  01. 

rir.o'Wornioiith  v.  Hatch,  .33  Cal.  121.  When  a  defendant  pleads 
the  Statute  of  Limitations,  matters  upon  which  the  plaintiff  relies 
to  relieve  him  frrun  the  bar  of  the  statute  are  deemed  to  have  been 
pleaded  in  rei>ly  to  tlie  answer.     Fox  v.  Ta.v,  H9  Cal.  330. 

T.i  People  v.  r.readwMv   Wharf  Co..  31  Cal.  33. 

3r.i.' Smith  v.  Ricimiond.  19  Cal.  470;  Chabot  v.  Tucker.  .39  id.  4.31; 
Curtiss  V.  Aetna  L.  Ins.  f'o.,  90  id.  245:  25  Am.  St.  Rep.  114;  Kraner 
V.  Halsey,  S2  Tal.  2f>9:  Davis  v.  T)nvis,  20  Oreg.  7S;  Douglas  v. 
Corrj'.  40  Oliif)  St.  .349;  Pleasant  v.  Samuel.'^.  114  Pal.  34. 

Vol.  T— 33 


§  ;$;]•>  i'L]:Ai>iN(iti  oi'   plaintiff. 


25S 


i.laintilT  to  allege  in  his  complaint  any  facts  or  circumstances 
lo  avoid  or  anticipate  the  defense  of  the  Statute  of  Limitutions, 
unless  tlie  cause  ot  action  appear,  upon  the  face  of  the  com- 
plaint, to  be  barred.  Where  triple  cUunages  are  given  by  a 
.>latute,  it  must  l)e  exi)ressly  inserted  in  the  complaint,  which 
must  either  recite  the  statute  or  conclude  to  the  damage  of  the 
[tlaintilV  against  the  form  of  the  statute;  as  in  actions  for 
waste.^''^  Where  there  arc  separate  statutes,  giving  a  different 
measure  of  damages  for  the  same  wrongs,  it  has  been  held  that 
the  plaintff  must  elect  upon  which  he  will  rely.^^"* 

S  332.  Third  subdivision  —  demand  for  relief.  The  third 
subdivision  of  section  t'^G  of  the  California  Code  of  Civil  Pro- 
cedure prescribes  that  the  complaint  shall  contain  a  demand 
for  the  relief  which  the  plaintitf  claims.  This  is  the  most 
important  subdivision  of  the  section,  as  the  relief  granted  to 
the  plaintiff,  if  there  be  no  answer,  shall  not  exceed  that  de- 
manded in  the  complaint.^^'^  But  in  any  other  case  than  a 
default  of  the  defendant,  as  where  issue  is  joined,  the  court  may 
grant  any  relief  consistent  with  the  case  made  by  the  complaint 
and  embraced  within  the  issue ;2^^  so  that  where  there  is  an 
answer  to  the  complaint,  the  prayer  for  relief  becomes  im- 
material.^^''    So  held  in  mandamus  and  quo  zvarrantoP^ 

The  theory  of  the  Code  seems  to  require  the  plaintiff  spe- 
cifically to  demand  the  relief  to  which  he  supposes  himself 

553  Chipman  v.  Emerio.  5  Cal.  239;  see,  also,  Rees  v.  Emerick,  6 
Serjr.  &  R.  288;  Newcomb  v.  Butterfield,  8  Jolms.  342;  Livingston 
V.  Platner,  1  Cow.  170;  Benton,  v.  Dale,  id.  160. 

354  Sipperly  v.  Troy  &  Boston  R.  R.  Co.,  9  How.  Pr.  83. 

35!i  Cal.  Code  Civ.  Pro.,  §  580;  N.  Y.  Code  Civ.  Pro.,  §  1207;  and 
Codes  of  Nevada,  Idaho,  Arizona,  etc.;  Raun  v.  Reynolds,  11  Cal. 
19;  Gage  v.  Rogers.  20  id.  91;  Lattimer  v.  Ryan.  id.  028;  Lamping 
V.  Hyatt,  27  id.  102;  Gautier  v.  English,  29  id.  16.5;  Pan-ott  v.  Den, 
34  id.  81;  Simonson  v.  Blalve,  12  Abb.  Pr.  331;  20  How.  Pr.  484; 
Walton  V.  Walton.  32  Barb.  203;  Bond  v.  Pacheco,  30  Cal.  .531,  where 
it  is  held  that  a  judgment  rendered  for  a  sum  greater  than  that 
demanded  in  the  prayer  is  not  void,  but  eiToneous.  See,  also, 
Andrews  v.  Monilaws.  8  Hun,  65. 

s-'ifi  Cal.  Code  Civ.  Pro.,  §  .580;  Savings  &  Loan  Society  v.  Thomp- 
son, 32  Cal.  .347. 

s.'.TSee  eases  last  cited:  Marquat  v.  iNIarquat,  12  N.  Y.  3.30;  .Johnson 
V.  Polliemis,  99  Cal.  240;  Andrews  v.  Carlile.  20  Col.  370;  Beclcer  v. 
Pugli.  9  iVl.  .589;  Bell  v.  Merrifield,  109  X.  Y.  202;  Dennison  v.  Chap- 
man, 105  Cal.  447. 
.358  People  v.  Board  of  Sui)ervisors.  27  Cal.  055, 


259  COMPLAIK^TS  i:j<  general.  §  332 

entitled. ^'^  But  where  a  party  asks  for  a  specific  relief,  or  for 
such  other  or  further  order  as  may  be  just,  the  court  may  afford 
any  relief  compatible  with  the  facts  of  the  case  presented.^^ 
And  if  specific  relief  can  not  be  granted,  such  relief  as  the 
case  authorizes  may  be  had  under  the  prayer  for  general  relief .^^^ 
Thus,  under  the  general  prayer,  the  court  may  allow  a  deed  to 
be  reformed  by  inserting  in  it  a  power  of  revocation.^*^^  It  is, 
however,  improper  to  include  counsel  fees  and  amount  paid  for 
taxes  in  the  judgment,  if  not  asked  for  in  the  prayer  for  re- 
lief.^^  To  entitle  plaintiff  to  relief  in  equity,  it  must  be  shown 
that  he  is  without  remedy  at  law.^^ 

The  prayer  of  a  complaint  may  seek  both  legal  and  equitable 
relief  where  the  matter  arises  out  of  the  same  transaction.^^^ 
But  they  must  be  separately  stated  in  the  camplaint.^^  And 
the  grounds  of  equitable  interposition  should  be  stated  subse- 
quently to  and  distinct  from  those  upon  which  the  judgment  at 

359  L'Amoreaux  v.  Atlantic  Mut.  Ins.  Co.,  3  Duer,  (>80;  Mills  v. 
Thursby,  2  Abb,  Pr.  432.  The  effect  of  the  prayer  of  the  complaint 
is  discussed  and  qualified  in  Savings  &  Loan  Society  v.  Thompson, 
32  Cal.  347;  Conger  v.  Gilmer,  34  id.  77;  Lane  v.  Gluckauff.  28  id. 
289;  Cassacia  v.  Phoenix  Ins.  Co.,  28  id.  628;  McComb  v.  Reed,  id. 
289;  87  Am.  Dec.  121;  N.  C.  &  S.  C.  Co.  v.  Kidd.  37  Cal.  301;  Van  Dyko 
V.  Jackson,  1  E.  D.  Smith.  419;  Jones  v.  Butler.  30  Barb.  ()41;  20 
How.  Pr.  189;  Emery  v.  Pease,  20  X.  Y.  G2;  Marquat  v.  Marquat, 
12  id.  33<>;  reversing  S.  C,  7  How.  Pr.  417. 

3«o  People  V.  Turner,  1  Cal.  152;  Gillett  v.  Clark,  6  Mont.  190; 
Cummings  v.  Cummings.  75  Cal.  434;  Nevin  v.  Mining  Co.,  10 
Col.  357;  Kleinschmidt  v.  Steele,  15  Mont.  181. 

361  People  V.  Turner,  1  Cal.  152;  Truebody  v.  Jacobsooi,  2  id.  269; 
Rollins  V.  Forbes,  10  id.  ^9;  Hemson  v.  Decker,  29  How.  Pr.  385; 
see  Ross  v.  Purse,  17  Col.  24;  Dykers  v.  Towusend,  24  N.  Y.  G2. 

362  Grafton  v.  Remsen,  16  How\  Pr.  32. 

363janson  v.  Smith.  Cal.  Sup.  Ct.,  Januaiy  Term,  1806,  not 
reported. 

364  Lupton  V.  Lupton.  3  Cal.  120;  Parker  v.  Woolen  Co.,  2  Black 
^T'.  S.),  54.5.  What  averments  on  the  face  of  a  bill  in  equity  entitle 
[ilalntlff  to  relief,  see  Gritting  v.  GIbb,  2  Black  fU.  S.),  519. 

36.-5  Gates  V.  Kleff,  7  Cal.  125;  Marias  v.  Bicknell,  10  id.  224;  Weaver 
V.  Conger,  Id.  237;  Rollins  v.  Forbes.  Id.  300;  Hill  v.  Taylor,  22  id. 
191;  Eastman  v.  Tnrman,  24  Id.  382;  Gray  v.  Dougherty.  25  id.  266; 
More  V.   .Masslni.  32   Id.   .59.5.   .596;   Palcn   v.   Bushnell.   46   Barb.   24. 

366  0ntes  V.  Kh-ff,  7  Cal.  124;  Gelty  v.  Hudson  Kiver  R.  R.  Co., 
6  How.  Pr.  2<;!t:  .\ew  York  Ice  Co.  v.  N.  W.  Ins.  Co..  23  N.  Y.  357; 
21  How.  Pr.  21k;:  Lamr)ort  v.  Abbott.  12  Id.  340.  Whei-e  l)otli  legal 
jind  (-(|uitnl>Ie  relief  are  sought  In  the  same  pleadlntr.  but  tlie  right 
to  such  relief  is  based  upon  the  same  facts,  a  demurrer  upon  the 


§  33'-i  TLEADINOS  OF  PLAINTIFF.  200 

law  is  sought.-"'"  'I'lius  a  prayer  for  an  injunction  is  proper  in 
an  action  of  trespat^s/'"**  Or  whore  suit  is  brought  to  test  the 
priority  oi'  the  appropriation  of  water.^^  Or  on  foreclosure  of 
a.  mortgage  to  restrain  waste  during  the  period  of  redeniption."*'*^ 
But  a  prayer  can  not  include  a  demand  for  two  kinds  of  relief 
inconsistent  with  each  other,  as  for  redelivery  of  and  damages 
for  the  detention  and  conversion  of  personal  property.^"^  Or 
for  general  relief  and  for  judgment  in  a  specided  sum  for  a 
money  demand  on  a  contract.^"^  J>ut  sueli  prayer  will  not  be 
struck  out.^^^  And  the  court  will  not  resort  to  rules  of  con- 
struction to  determine  the  species  of  relief  demanded.^'^*  But, 
although  the  prayer  be  inartilicially  framed,  the  court  will  grant 
relief.^'^^  Under  the  liberal  rules  of  our  Code  the  complaint 
must  be  taken  as  a  whole,  and  mere  failure  to  make  the  prayer 
conform  to  the  causes  of  action  set  forth  in  the  complaint  will 
not  preclude  the  plaintiff  from  obtaining  the  relief  which  the 
complaint  seeks,  but  which  the  prayer  omits.  A  party  can 
not  state  one  set  of  facts  in  his  complaint,  pray  for  the  relief 
which  those  facts  would  authorize,  and  get  judgment  upon 
another  set  of  facts.^'^*' 

In  general,  a  demand  for  judgment  in  the  alternative  is  im- 

ground  that  several  causes  of  action  are  improperly  joined  and 
that  they  are  not  separately  stated  can  not  be  susfained.  San 
Diego  Water  Co.  v.  Flume  Co.,  108  Cal.  549. 

3C7  Xatoma  Water  &  Mining  Co.  v.  Clarliin,  14  Cal.  544. 

3C8  Gates  v.  Kieff,  7  Cal.  125;  Hughes  v.  Dunlap,  91  id.  385. 

369  Marius  v.  Kicknell,  10  Cal.  217. 

370  Hill  V.  Taylor,  22  Cal.  191. 

371  Maxwell  v.  Farnani,  7  How.  Pr.  236. 
372Durant  v.  Gardner,  10  Abb.  Pr.  445. 

373  Hemson  v.  Decker,  29  How.  Pr.  385. 

374  Gates  V.  Kieff,  7  Cal.  125. 

375  People  V.  Turner,  1  Cal.  152;  Trnebody  v.  Jacobson,  2  id.  269; 
Stewart  v.  Hutchinson,  29  How.  Pr.  181. 

370Fii-st  Nat.  Bank  v.  Campbell,  2  Col.  App.  271;  Northern  Rail- 
way Co.  V.  .Jordan,  87  Cal.  23;  Reed  v.  Norton,  99  id.  617.  The 
relief  to  which  the  plaintiff  is  entitled  against  any  one  of  the  de- 
fendants is  not  limited  by  his  prayer  for  relief  against  other 
defendants,  and  he  is  entitled  to  any  relief  justified  by  the  facts 
alleged  in  the  complaint,  if  proved  or  admitted.  Tyler  v.  Mayre, 
95  Cal.  IW).  So  it  is  held  that  a  prayer  in  an  equity  action  which 
seeks  relief  inconsistent  with  the  theory  of  the  complaint  will  be 
disregarded  as  immaterial  matter.  Arnold  v.  Sinclair,  11  Mont.  55G; 
28  Am.  St.  Rep.  4S9. 


2<61  COMPLAINTS    IX    GENEKAL.  §  333 

l^roper.^'^  But  in  actions  for  equitable  relief,  tlie  complaint 
may  be  framed  with  a  double  aspect  where  there  is  doubt  as  to 
the  particular  relief  to  which  the  plaintitf  is  entitled.^'''* 

There  is  no  rule  of  pleading  which  requires  a  party  to  aver 
the  precise  amount  he  claims;  but  he  may  recover  a  less  amount 
than  that  which  is  stated  in  the  complaint.^^^  And  where 
there  are  two  independent  counts  in  the  complaint,  each  com- 
plete within  itself,  and  concluding  with  a  prayer  for  relief,  and 
a  verdict  for  the  plaintiff  on  one  count  only,  the  relief  will 
follow  the  prayer  of  that  count.-**^"  Under  the  Colorado  Code, 
the  form  of  the  prayer  seems  to  be  immaterial  and  a  demurrer 
will  not  lie  to  the  whole  bill  on  account  of  a  specific  prayer.^^' 
And  where  an  answer  is  tiled  and  the  action  is  contested,  the 
plaintiff  may,  where  the  evidence  justifies  it,  recover  Judgment 
for  a  larger  amount  than  that  prayed  for  in  the  complaint. ^^^ 
It  has  been  held,  however,  that  if  a  specific  sum  is  demanded, 
a  greater  amount  can  not  be  given  without  an  amendment  of 
the  complaint  in  that  respect.^^^ 

377  Maxwell  v.  Farnam,  7  How.  Vv.  23(;;  Durant  v.  Gardner,  10 
Abb.  Pr.  44.5;  19  How.  Pr.  94:  see  Anderson  v.  Speers,  58  How.  Pr. 
G8:  Mdl.ile  Sav.  Bank  v.  Burke,  94  Ala.  12.5. 

37H  Youn^x  V.  Edwards.  11  How.  Pr.  201;  Warwick  v.  Mayor  of 
Now  York,  2S  Barb.  210;  7  Abb.  Pr.  205;  People  v.  Mayor  of  New 
Voi-k,  2.S  Barb.  24<»;  S  Abl>.  Pr.  7;  Wood  v.  Seely.  32  N.  Y.  105;  Lyke 
V.  Post,  05  How.  Pr.  298;  seo  Wood  v.  Rayburn,  IS  Oreg.  3. 

370  Meek  v.  MoClurt>,  49  Cal.  027. 

3S0  X.  c.  &  S.  C.  Co.  V.  Kidd,  37  Cal.  283. 

3«]  Waferbui-j-  v.  Fislier,  5  Col.  App.  202;  see.  also.  Riser  v.  Wal- 
ton, 78  Cal.  490. 

3S2  0hio  Creek  Coal  Co.  v.  Hinds.  15  Col.  173. 

383  Miles  V.  Walther,  3  Mo.  App.  96;  Burke  v.  Koch,  75  Cal.  356. 


FORMS  OF  COMPLAINTS. 


SUBDIVISION  FIEST. 

BY  AND  AGAINST  PARTICULAR  PERSONS,  INDIVIDUALLY, 
AND  IN  REPRESENTATIVE  CHARACTER  AND  OFFICIAL 
CAPACITY. 

CHAPTER   I. 

ASSIGNEES   AND   DEVISEES. 

§   833.   By  the  assignee  of  a  claim. 
For)ii  No.  70. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  [State  cause  of  action  accruing  to  the  plaintiff's  assignor.] 

II.  That  on  the   day  of   ,  18..,  at 

,  the  said assigned  the  said  claim 

to  plaintiff. 

[Demand  of  Judgment.] 

I  334.  What  choses  in  action  are  assignable.  The  provisions 
of  the  Codes  of  the  various  states  requiring  that  "every 
action  must  be  prosecuted  in  the  name  of  the  real  party  in  in- 
terest,"^ except  as  otherwise  provided,  the  immediate  effect  of 
which  is  to  permit  the  assignee  of  a  thing  in  action  to  sue  in 
his  own  name,  raises  the  important  question.  What  things  in 
action  are  assignable?  At  common  law,  with  the  exception  of 
actions  on  negotiable  paper,  the  rule  was  well  settled  that  "  in 
general,  the  action  upon  a  contract,  wlaether  express  or  implied, 
or  whetlier  by  parol  or  under  seal,  or  of  record,  must  be  brought 
in  the  name  of  tlie  party  in  whom  the  legal  interest  in  such 
contract  was  vested. "^  Jn  equity  a  different  rule  prevailed, 
which  permitterl  the  assignee  to  sue  in  his  own  name.     The 

1  Sop  Cal.  Code  Civ.  Pro.,  §  367;  also,  §§  152,  153,  ante. 

2  1  Chit.  PI.  2. 


263  ASSIGNEES    AXD    DEVISEES.  §  334 

effect  of  the  provisions  of  the  Code  cited  above  is  to  extend  this 
equity  doctrine  to  all  cases  of  assignment,  bnt  not  to  render 
assignable  any  claims  or  demands  which  before  its  enactment 
were  unassignable.^  In  the  determination  of  this  question, 
therefore,  recourse  must  be  had  to  the  settled  doctrines  of  the 
law  as  they  existed,  independent  of  any  changes  of  procedure 
made  by  the  Code.  As  a  general  proposition,  all  choses  in  ac- 
tion which  survive  and  pass  to  the  personal  representatives  of 
a  decedent  are  assignable,  and  this  includes  not  only  causes  of 
action  which  arise  from  contract,  but  in  many  cases  those  which 
have  their  origin  in  torts  done  to  personal  or  real  property.  In 
general  all  causes  of  action  arising  from  the  breach  of  eon- 
tract  survive,  and  are  consequently  assignable,  except  those 
wliich  are  purely  personal  in  their  nature,  and  the  fulfillment 
of  which  requires  the  continuance  of  the  relation  between  the 
original  contracting  parties.  As  illustrations  of  such  personal 
contracts  which  are  not  subject  to  assignment,  are  contracts 
providing  for  apprenticeship.*  contracts  for  marriage,^  and  con- 
tracts stipulating  for  the  performance  of  services  by  an  attorney 
or  medical  practitioner.^     So  when  an  artist  or  an  author  con- 

^  Hodpinan  v.  "Wostern  R.  Co.,  7  IIow.  Pr.  492.  in  which  the  cmu-t 
said:  "  The  only  change  made  by  the  Code  is  to  transfer  with  the 
lieneficial  interest  the  rifiht  of  action  also  in  those  cases  where  be- 
fore the  court  wonld  recofjnize  and  protect  the  rights  of  the  as- 
siiTiiee.  No  new  rijrht  of  action  is  created;  no  authority  is  given  to 
assign  a  right  of  action  not  before  assignable." 

4  Hall  V.  Cardner,  1  Mass.  172;  Davis  v.  Coburn.  S  id.  200; 
Cochran's  Ex'r  v.  Davis,  .'>  Litt.  118. 

5  Stebbins  v.  rainier.  1  Pick.  71;  11  Am.  Dec.  140;  Smith  v.  Slier- 
nian.  4  Cush.  408;  Dattimore  v.  Sinunons,  13  Serg.  &  R.  183; 
ChamlM^rlain  v.  Williamson,  2  Man.  iK:  Scl.  408;  1  Chit.  PI.  .">1 ;  Meecli 
V.  Stoner,  10  X.  Y.  20;  AVade  v.  Kall)tleiscli,  ."kS  id.  282:  17  .\m.  Rep. 

2.nn. 

'JJTiltoii  v.  Crooker,  P,()  Neb.  707;  Zabriskie  v.  Smitli.  13  \.  Y. 
3.33;  M  Am.  Dec.  'uA.  In  this  case  Denio.  .7.,  snid:  ••The  maxim 
of  the  common  law  is.  Actio  t^crsonalis  titoritiir  cum  f'crsona.  This 
prlnclitle  was  not  originally  ai)plied  to  causes  of  action  growing 
out  of  the  breach  of  a  contract.  They  were  parcel  of  tlie  personal 
estate,  In  reference  to  wliicli  the  admiiiisti-ator  or  executor  repre- 
sents the  person  of  tlie  deceased,  and  is  in  laAV  his  assignee.  But 
as  to  this  class  of  rights  of  action  late  cases  have  somewhat  quali- 
fied the  rule,  and  it  is  now  well  settled  tliat  an  executor  or  adminis- 
trator can  not  maintiiin  an  action  upon  an  express  or  implied 
promise  to  the  deceased,  where  tlie  damages  consist  entirely  of  the 
personal  sufferings  of  the  deceased,   whetlier  mental  or  corporeal. 


^  ;5;>4  i-oi;.Ms  (ti-  L'u.Mi'LAiNis.  2G4 

iriuis  lo  paint  a  piriuiv  or  write  a  book,  \w  can  not  assign  such 
i-ontract  so  i'ai"  as  to  authorize  its  porl'ormaiice  by  another  J 
And  tlu'  law  will  not,  as  a  grneral  rule,  permit  a  person,  to 
assign  his  obligations  lo  another.**  On  tlie  contrary  the  fol- 
lowing causes  of  action  ha\e  l)eeu  hekl  assignable,  although 
upon  a  casual  examination  they  might  appear  to  fall  within  the 
i-lass  of  personal  contracts  which  arc  not  subject  to  transfer. 
Thus  a  contract  of  guaranty;''  the  right  of  a  horrower  to  recover 
back  the  excessiA-e  interest  upon  an  usurious  loan;^°  a  contract 
for  the  hiring  of  the  services  of  state  prison  convicts;^^  a  eon- 
tract  with  the  authorities  of  a  city  corporation  for  cleaning  the 
streets  during  a  certain  time  and  at  a  stipulated  priee;^^  right  of 
an  othcer  to  his  fees,^^  and  the  right  of  a  widow  to  her  dower 
before  admeasurement,  may  all  be  assigned.^'* 

Actions  for  the  breach  of  a  promise  of  inarria.uo,  for  nnskillfulncss 
of  medical  practitioners  contrary  to  their  implied  undertaking-,  the 
imprisonment  of  a  party  ou  account  of  the  neglect  of  his  attorney 
to  perform  his  professional  engagements,  fall  under  this  head,  being 
considered  as  virtually  actions  for  injuries  to  the  person.  *  *  * 
If  it  be  true  that  the  executors  and  administrators  are  the  testator's 
assignees,  it  is  fair  to  assume  that  they  take  whatever  of  a  personal 
nature  the  deceased  had  Avhich  was  capable  of  assFgnraent;  and 
thus  the  power  to  assign  and  to  transmit  to  the  personal  representa- 
tives are  convertible  propositions.  *  *  *  Any  interest  to  which 
the  personal  representatives  of  a  decedent  would  not  succeed  is  not 
the  subject  of  assignment  inter  vivos" 

7  La  Rue  v.  (iroezinger.  84  Cal.  281;  18  Am.  St.  Rep.  179. 

8  Rappleye  v.  Racine  Seeder  Co.,  79  Iowa,  220. 
I'  Small  V.  Sloan,  1  Bosw.  352. 
lOWheelock  v.  Lee,  64  N.  Y.  242. 

11  Horner  v.  Wood,  23  N.  Y.  350. 

12  Devlin  v.  Mayor,  63  N.  Y.  S.  In  discussing  the  right  of  a  con- 
tractor to  assign,  Allen,  J.,  said:  "  If  the  service  to  be  rendered  is 
not  necessarily  personal,  and  such  as  can  only,  and  with  due  regard 
to  the  intei-ests  of  tlie  parties  and  the  rights  of  the  adverse  party, 
be  rendered  ]»y  the  original  contractor,  and  the  latter  has  not  dis- 
Mualified  iiim.self  from  performance,"  the  contract  is  assignable. 

i-i  Piatt  V.  Stout.  14  Abb.  Pr.  178;  Birk])eck  v.  Stafford,  id.  285. 
It  is  now  to  be  regarded  as  settled  law  that  the  unearned  fees  of 
a  iiul)lic  officer  may  not  be  assigned.  Bowery  Nat.  Bank  v.  Wilson, 
122  N.  Y.  478:  19  Am.  St.  Rep.  507;  Bangs  v.  Dunn.  66  Cal.  72;  Field 
v.  Cliijdey.  79  Ky.  260;  42  Am.  Rep.  215. 

14  Strong  v.  Clem,  12  Ind.  37;  Pope  v.  Mead,  99  N.  Y.  201.  So 
an  attorney's  lien  for  services  is  assignable.  Sibley  v.  Pike  County, 
31  Minn.  201;  so  of  a  perfected  mechanic's  lien.  McDonald  v. 
Kelley,  14  R.  I.  528;  Kinney  v.  Ore  Co.,  58  Minn.  455;  so  of  a  right 


265  ASSIGXEES    AXD    DEVISEES.  §  335 

§  335.  Assignment  of  claims  arising  from  torts.  lu  deter- 
mining what  causes  of  action  arising  from  torts  are  assignable, 
the  same  criterion  has  been  adopted  as  in  the  case  of  contracts. 
If  the  claim  is  one  which  would  survive  to  the  personal  repre- 
sentative of  the  decedent,  it  is  assignable,  otherwise  not.  As 
a  general  rule  causes  of  action  arising  from  torts  were  not  as- 
signable at  common  law;  and  the  same  rule  prevailed  in  equity 
as  to  merely  personal  injuries,  sueli  as  libel,  slander,  and  the 
like,  where  the  effect  of  the  injury  did  not  tend  to  diminish  the 
value  of  the  estate.  Such  personal  injuries  died  with  the  per- 
son, and  were  incapable  of  assignment. ^'^  Statutes  have  been 
passed  in  most  of  the  states  which  increase  tlie  number  of  causes 
of  action  which  survive,  so  as  to  include  all  injuries  to  property 
by  which  its  value  has  been  diminished.^^  As  illustrations  of 
such  causes  of  action  which  survive,  and  are  consequently  as- 
signable, may  be  mentioned  claims  arising  from  the  negligent 
use  of  real  or  personal  property.^"     Or  for  the  conversion  of  the 

to  make  and  vend  a  certain  article  in  a  prescribed  territory.  Spence 
V.  Smith,  101  N.  C.  234:  so  of  a  claim  for  damages  for  injury  to  a 
trademark.  Julian  v.  Hoosier  Drill  Co.,  78  Ind.  408;  so  of  a  per- 
fected I)oat  lien.  The  Victorian,  No.  2,  26  Oreg.  194;  40  Am.  St. 
Rep.  010;  and,  generally,  moneys  due,  or  to  become  due,  and  every 
denjand  connected  witli  a  riglit  of  property,  real  or  personal,  are 
assignable.  See  Truax  v.  Slater,  80  N.  Y.  o:30;  Stott  v.  Franey,  20 
Oreg.  410;  23  Am.  St.  Kcp.  132;  Brown  v.  Scliool  District,  48  Kan. 
709;  Norton  v.  Wliitehead,  84  Cal.  203;  IS  Am.  St.  Rep.  172;  Bacon 
V.  Bonham,  33  X.  .7.  E»i.  014;  Kerr  v.  Moore,  54  Miss.  280.  But 
the  mere  right  of  a  laborer  or  materialman  to  assert  and  create  a 
lien  under  the  Mechanics'  Lien  Law  is  a  personal  right,  and  can 
not  be  assigned.  Mills  v.  La  Verne  Land  Co.,  97  Cal.  2.'>4;  33  Am.  St. 
Rep.  1(W. 

i'>  People  V.  Tioga,  19  Wend.  73;  Comegys  v.  Vane,  1  Pet.  209; 
Averill  v.  Longfellow,  0(5  Me.  237;  Itenfro  v.  Pryor,  25  Mo.  App. 
402;  Railroad  Co.  v.  Read,  78  Va.  18.'".. 

iciioyt  V.  Thompson,  5  N.  Y.  320;  Haight  v.  Hayt,  19  id.  404; 
Byxbie  v.  Wood,  24  id.  007;  ISlcMalion  v.  Allen,  35  id.  403;  (Jraves 
V.  Spiers,  .58  Barb.  .3-19;  Butler  v.  Xew  York  &  Krie  R.  R.  Co.,  22  id. 
110;  Weire  v.  Davenport,  11  Iowa,  49;  Tyson  v.  Mci  iiiiiicas.  25  Wis. 
050;  Smith  v.  Ilarri.s,  43  Mo.  .5(!2. 

17  Fried  V.  New  York  Cent.  1{.  R.  Co.,  25  How.  Pr.  285;  Wal(b«>n 
V.  Willard,  17  N.  Y.  4<i0;  Meirill  v.  (Jriniiell,  .'{O  id.  .594;  Merriek  v. 
Brainard.  38  Barb.  57-1:  Staninn  v.  1. eland.  4  K.  D.  Smitli,  R8;  Fnltou 
Fire  Ins.  Co.  v.  Baldwin.  37  N.  Y.  04S;  Dinlnny  v.  Fay,  38  Barb. 
18;  Ayrault  v.  Pacilic  Bank,  0  Robt.  337. 

34 


i<  ;J35  FOUMS    OK    (  OMI'LAINTS.  266 

lattoi-."*  Or  injurk's  to  the  suae.''''  Or  for  fraudulontly  in- 
diu-ini,'  ono  in  I'lilor  into  the  marriage  relation.^  Or  Tor  fraud 
or  iK'ceit  in  contracts  rehiting  to  the  sale  of  real  or  personal 
propeitv.-'  On  the  contrary,  causes  of  action  which  relate 
purely  to  the  person,  and  are  founded  on  injuries  done  to  the 
body  or  character,  do  not  survi\e.  and,  as  a  consequence,  are 
not  assigna"l)le.  As  illusti'ations  of  this  class  are  claims  for 
malicious  prosecution.--  Or  for  injuries  to  the  person,  caused 
hy  the  neglect  of  a  common  carrier.^  Or  for  a  vendor's  lien 
for  the  purchase  price  of  land  sold.-'*  Nor  will  a  verdict  ren- 
dered in  such  an  action  change  the  nature  of  the  demand  so  as 
to  render  it  assignable,  although  after  judgment  the  same  may 
be  assigned  as  a  contract  of  record.^^  If,  however,  after  judg- 
ment has  been  entered  upon  the  verdict,  and  a  motion  for  a 
new  trial  has  been  made,  the  party  in  the  meantime  die,  judg- 
ment will  be  entered  nunc  pro  tunc  as  of  the  time  of  the  ver- 
dict, so  as  to  prevent  the  action  from  abating. -'' 

18  Lazard  v.  ^^'lIeeltM•,  22  Cat.  139:  Tyson  v.  McGulneas,  25  Wis. 
(i56;  Smith  v.  Keunett.  18  Mo.  154;  McKee  v.  .Tudd,  12  N.  Y.  022; 
04  Am.  Dec.  ."►l.".;  Kiclitmeyer  v.  Kemsen,  38  N.  Y.  200. 

19  IJutlicrford  v.  Ailven,  3  N.  Y.  Sup.  Ct.  GO;  More  v.  Massini.  32 
Cal.  590;  Ilaisht  v.  (Jreen.  19  id.  113:  Weire  v.  Davenport,  11  Iowa, 
49;  McArthur  v.  Green  Bay,  etc.,  Co.,  34  Wis.  139;  Butler  v.  New 
York  &  E.  R.  R.  Co.,  22  Barb.  110;  Railroad  Co.  v.  Henderson,  (59 
Tenn.  1;  Chouteau  v.  Boughton,  100  Mo.  406;  Shaw  v.  Lead  Co., 
20  Blatchf.  417. 

20  Hifffjius  v.  Breen,  9  Mo.  497. 

21  Haight  v.  Hayt,  19  N.  Y.  464;  Byxbie  v.  Wood,  24  id.  607; 
Graves  v.  Spier,  58  Barb.  349;  Johnston  v.  Bennett,  5  Abb.  Pr. 
(N.  S.)  331;  AVoodbuiy  v.  Deloss,  65  Barb.  501;  Grocers'  Nat.  Bank 
v.  Clark.  48  id.  26;  but  see  contra,  Zabriskie  v.  Smith,  13  N.  Y.  322; 
64  Am.  Dec.  551. 

22Noonan  v.  Orton,  34  Wis.  259;  Lawrence  v.  Martin,  22  Cal.  173. 
In  Iowa,  a  right  of  action  for  a  personal  tort  may  be  sold  and  as- 
signed like  any  other  cause  of  action,  so  as  to  vest  in  the  assignee 
a  right  of  action  in  his  own  name.  Vimont  v.  Railway  Co.,  64 
Iowa,  513. 

23IIodgman  v.  Western  R.  R.  Co.,  7  How.  Pr.  492;  Purple  v.  IL 
R.  R.  R.  Co..  4  Duer,  74.  This  rule  has  been  changed  in  several  of 
the  states  by  special  statutes,  which  give  a  right  of  action  under 
Buch  circvniistanccs  to  the  personal  representatives  of  the  deceased. 

24  Baum  v.  Grisby,  21  Cal.  172;  81  Am.  Dec.  153;  Lewis  v.  Covil- 
land.  21  Cal.  7S;  Williams  v.  Young,  id.  227;  Law  v.  Butler,  44  Minn. 
482:  Klder  v.  Jones,  S5  111.  384. 

25  Lawrence  v.  Martin,  22  Cal.  173;  Crouch  v.  Gridley.  6  Hill, 
250;  In  re  Charles,  14  East,  197;  Kellogg  v.  Schusier,  2  Den.  73. 

26  Ryghtmyre   v.    Durham,    12  Wend.   245;    Turner   v.    Booker,   2 


207  ASSIGNEES    AND    DEVISEES.  §  33G 

§  336.  Assignments,  how  made.  JSTo  formality  in  the  man- 
ner of  assignment  is  necessary  to  invest  tlie  assignee  with  the 
right  to  bring  suit  in  his  own  name.  Any  act  amounting  to 
a  rightful  appropriation  of  a  debt,  or  whereby  one  person's  in- 
terest in  a  chose  in  action  passes  to  another,  constitutes  an 
assignment.^  So,  where  an  order  is  given  for  a  valuable  con- 
sideration, and  for  the  whole  amount  of  a  demand  against  the 
drawee,  though  worthless  as  a  bill,  it  operates  as  an  assignment 
of  the  debt  or  fund  against  which  it  is  drawn.  And  an  order 
drawn  by  a  creditor  on  his  debtor  for  a  portion  of  his  demand 
constitutes  an  assignment  of  the  debt  pro  tanto.^  In  Kentucky, 
however,  no  title  passes  by  a  partial  assignment.^"  While  in 
Indiana  (the  Code  of  which  state  requires  that  in  an  action  by 
an  assignee,  founded  on  a  nonnegotiable  instrument,  the  as- 
signor shall  be  joined),  the  assignee  of  part  of  a  judgment  was 
united  with  the  assignor;^^  and  the  same  was  permitted  in  the 
case  of  the  assignee  of  one  of  two  payees  of  a  promissory  note.^^ 
Upon  the  same  principle,  the  assignment  by  a  creditor  to  his 
debtor  of  part  of  his  demand  constitutes  a  payment  thereof 
pro  tantoP  So  also  the  indorsement  of  a  bill  of  lading,  prhna 
facie,  vests  the  property  in  the  goods  in  the  indorsee.-"^*  An  in- 
strument in  writing,  whether  the  same  be  a  contract,  bond,,  or 
judgment,  may  be  assigned  by  a  writing  on  a  separate  piece  of 

Dana.  3.^4:  Collins  v.  Prentice,  !.">  Conn.  423;  Dial  v.  Ilolter.  6 
Ohio  St.  228. 

27  Wiggins  V.  McDonald,  18  Cal.  126;  and  see  Barrett  v.  Hinckley, 
124  111.  32;  7  Am.  St.  Rep.  331;  Bushnoll  v.  Bushnell,  92  lud.  ",03. 

28Wheatley  v.  Strobe,  12  Gal.  92;  73  Am.  Dee.  .522;  Walker  v. 
T^Iauro.  IS  Mo.  T^eA. 

2!'MeEwen  v.  .Johnson.  7  Cnl.  2.")S;  (^rain  v.  Ahlrich,  .38  id.  .")14; 
00  Am.  Dec  423.  An  assignment  of  a  part  of  a  cliose  in  action, 
for  valuable  consideration,  is  goo<l  in  equity.  Risley  v.  Thenix 
B!inl<,  83  N.  Y.  .318;  .^S  Am.  Kep.  421;  P'ordyce  v.  Nelson,  01  Ind. 
447:  .Jam.es  v.  City  of  Newton,  142  Mass.  308. 

■'io  lOlledge  V.  Stranglin,  2  B.  Mou.  82;  Bank  of  Cnlliopolis  v.  Trim- 
ble. 0  id.  .''•OO. 

:n  Tapping  v.  Dnffy.  47  I  ml.  ."7. 

.32  Groves  v.  Tluby.  24  hid.   ns. 

3.1  MePike  v.  MfT'lierson.  41  Mo.  .''.21. 

34  Unckcr  v.  .Vveshford.  1  Cal.  7<;;  Harris  v.  De  Wolf,  4  I^et.  147; 
B;ildcisfoii  V.  .Miun-o,  2  Crniuli.  C.  O.  (■>23.  The  indorsem(>nt  of  n 
note  secured  by  mortgage  ojierales  an  e(|nit!ible  assignment  of  the 
morlgage.  Jnsnranee  Co.  v.  Tall)ot,  113  Ind.  373;  3  Am.  St.  Hep. 
(^T)^^•.  and  see  Vorki'  v.  Conde,  (U  Hun,  2(;;  Switzer  v.  Noffsinger,  S2 
Ya.  r.18. 


§  3o7  rOUMS    OF    I  1»MI'LA1NTS.  208 

paper,  or  even  by  parol;'*'''  aud  au  iustrumcnt  uuelur  seal  may 
be  transi'erred  by  a  writing"  not  sealed. ^^'  Tlie  mere  signing  an 
assignment,  without  delivery,  is  suflicient  to  constitute  the  as- 
signee the  real  party  in  interest,  so  as  to  authorize  him  to  sue 
in  Jiis  own  luime.^^  A  negotiable  promissory  note  or  bill  of 
exchange  must  be  assigned  by  indorsement,  in  order  to  preserve 
its  negotiability;  but  au  assignee  by  delivery  may  sue  thereon 
in  his  own  name,  subject  to  all  the  equities  existing  in  favor  of 
the  drawer.^^ 

§  337.  Assignments^  how  alleged.  Where  the  plaintiff  is  an 
assignee,  the  complaint  must  allege  the  fact  of  the  assignment.'^ 
Such  allegations  must  be  a  positive  averment  of  a  transfer,  so 
as  to  show  title  in  the  plaintiff.^o  j^  jg  ^^-^^  enougli  merely  to 
allege  that  "the  said  plaintiff  is  now  the  sole  owner  of  the 
demand."  Such  an  allegation  is  not  an  averment  of  an  issuable 
fact,  but  of  a  mere  conclusion  of  law,  and  its  denial  would 
raise  no  issue.^^     An  allegation  that  A.  duly  assigned  and  trans- 

35  Hooker  v.  Eagle  Bank,  30  N.  Y.  83;  86  Am.  Dec.  351; 
Jones  V.  Witter,  13  Mass.  304;  Brings  v.  Doit,  19  .Tolins.  95; 
Dnnu  V.  Snell,  15  id.  481;  McCIain  v.  Weidemeyor,  25  Mo. 
;:<;4:  Thornton  v.  Crowtlier.  24  id.  164;  Hancock  v.  Kitehie, 
11  Ind.  48;  Andrews  v.  McDaniel,  G8  N.  C.  385;  White  v. 
I'helps,  14  Minn.  27;  Woinwick  v.  Bender,  33  Mo.  80;  Pear- 
sou  V.  Cummings,  28  Iowa,  344;  Williams  v.  Norton,  3  Kan. 
295;  Carpenter  v.  Miles,  17  B.  Mon.  598;  Couyngham  v.  Smith,  16 
Iowa,  471;  Barthol  v.  Blakin,  34  id.  452;  Moore  v.  Lowry.  25  id. 
336;  Green  v.  Marble,  37  id.  95;  Williams  v.  Ingersoll,  89  N.  Y.  508; 
Harley  v.  Heist,  86  Ind.  196;  44  Am.  Rep.  285. 

36  Moore  v.  Waddle,  34  Cal.  14,5. 

37  Bitter  v.  Stevenson,  7  Cal.  388. 

3s  Andrews  v.  McDaniel,  (\S  N.  O.  385;  Mandeville  v.  Riddle,  1 
Craneh.  95;  White  v.  Brown,  14  How.  Pr.  282;  Billings  v.  .Tane,  11 
Barb.  620;  Could  v.  Ellery,  39  id.  163;  Farrington  v.  Park  Bank, 
id.  645;  Brown  v.  Richardson,  1  Bosw.  402;  Houghton  v.  Dodge,  5 
id.  326;  Sexton  v.  Fleet,  2  Hilt.  485;  Fairbanks  v.  Sargent,  104  N. 
Y.  108;  58  Am.  Rep.  490;  Rayburn  v.  Hurd,  20  Oreg.  220. 

30  Prindle  v.  Caruthers,  15  N.  Y.  426;  White  v.  Brown,  14  How. 
Pr.  282;  Adams  v.  Holley,  12  id.  330. 

40  Stearns  v.  Martin,  4  Cal.  227. 

41  Thomas  v.  Desmond.  12  How.  Pr.  .321;  Russell  v.  C!app,  7  Barb. 
482;  Bentley  v.  .Tcmes.  4  How.  Pr.  202;  McMurray  v.  (iifford,  5  id. 
14:  Parker  v.  Totten.  10  id.  2.33;  Pooriiian  v.  .Mills.  35  Cal.  121;  and 
see  Sellers  v.  First  Presbyterian  Chui-ch,  91  Wis.  .328.  The  com- 
plaint should  plead  the  assignment  although  the  action  be  instituted 
in  a  .Justice's  Court.    Balden  v.  Thomasen,  17  Mont.  487.    In  Brown 


;^69  ASSIGJS'EES   AND    DEVISEES.  §§  338,  339 

ferred  all  his  interest  in  the  contract  to  the  plaintili'  B.,  and 
that  the  plaintiff  C.  became  interested  by  a  sale  and  assign- 
ment to  him  of  a  part  of  B.'s  interest,  has  been  held  sufficient."*- 
In  Indiana,  where  an  instrument  not  assignable  is  assigned  and 
sued  on  by  the  assignee,  if  the  assignor  is  made  a  party,  it  is 
immaterial  and  need  not  be  alleged  how  the  assignment  was 
made.'*^ 

§  838.  Averment  of  consideration  for  assignment.  A  prom- 
issory note  imports  a  consideration,  and  none  need  be  pleaded 
in  an  action  by  an  assignee.^*  Even  for  a  sealed  contract  an 
averment  of  assignment  imports  that  it  was  made  by  a  sealed 
instrument,  from  which  a  consideration  is  to  be  inferred,  and 
consequently  none  need  be  stated."*^  Nor  can  the  defendant 
aver  or  prove  that  the  assignment  was  only  intended  as  col- 
lateral security  for  the  payment  of  a  debt,  if  the  assignment 
is  absolute  on  its  face.*^  So,  in  Kentucky,  it  is  not  necessary 
in  a  suit  by  an  assignee  of  a  chose  in  action,  against  the  as- 
signor, to  aver  a  valuable  consideration.  It  is  sufficient  to  set 
out  the  assignment.^^ 

§  339.  Assignments  of  accounts.  The  assignee  may  sue  in 
his  own  name  on  an  account  assigned  to  him.*^  But  where 
there  is  no  final  settlement  of  partnership  accounts,  and  no 
balance  struck,  and  no  express  promise  on  the  part  of  the  indi- 
vidual members  to  pay  their  ascertained  portions  of  this  amount, 
no  action  can  be  maintained  therefor  in  assumpsit,  nor  can  an 
individual  partner  assign  his  claim  against  the  partnership  so 

V.  Richarflson.  20  N.  Y.  472,  an  averment  in  an  action  on  a  non- 
nepotlable  note  tliat  tiie  same  was  duly  indorsod  to  plaintiff,  and 
that  he  Is  the  lawful  owner  and  holder  of  the  same,  was  held  suffi- 
cient to  admit  evidenee  /)f  the  assignment. 

42iTorner  v.  Wood,  1.5  Barb.  372;  Fowler  v.  New  York  Indem. 
Ins.  Co..  2?,  id.  1.51. 

4?.  Rniitin  v.  Weddle,  20  Ind.  440. 

44  winter.s  v.  Rush,  .34  Cal.  l.'ic.;  Martin  v.  Kanonse,  2  Abb.  Pr. 
3.31:  Horner  v.  Wood.  1.5  Rarb.  .372. 

4.'>  Moore  v.  Waddle,  .34  Cal.  14.5;  Fowler  v.  New  York  Indem.  Ins. 
Co..  2.3  Rarb.  143;  f'lark  v.  Downinfr.  1  E.  D.  Smith.  40r,;  Rnrtnett 
V.  r.wynne,  2  Abl».  Pr.  70;  Vogel  v.  Radeoek,  1  id.  17G;  Martin  v. 
Kanonse.  2  id.  3.30;  Richardson  v.  Mead.  27  Rarb.  178. 

4«AVetniore  v.  S;in  Franeiseo,  44  C'al.  204. 

47  iTolt  V.  Thompson,  1  I>nval,  .301;  see,  also,  Dawson  v.  Pogue,  18 
Orep.  04:  Crepoire  v.  Rnurke,  2R  id.  27.5. 

48  Carpenter  v.  .Johnson.  1  Nev.  331. 


g  ;}.K)  FOKMS    OK    COMI'LAIXTS.  ST'O 

ihai  the  assignee  may  sue."*'*  The  assignee  oi'  an  account  and 
lutle  given  in  i)art  payment  ol"  it,  where  the  as>signment  of  the 
two  ehiims  was  contemporaneous,  may  sue  in  his  own  name."''" 
An  assignment  of  an  account  l)y  indorsing  on  it  the  word 
"  Assigned,"  is  sutlicient,  and  it  may  be  amended  on.  the  trial 
by  writing  above  it,  "  For  value  i-cceived,  I  hereby  assign  the 
whhin  account."''^  The  complaint  in  an  action  on  an  assigned 
account  need  not  allege  that  the  assignment  is  in  writing,  even 
in  case  proof  of  written  assignment  should  be  necessary  upon 
tlie  trial.^^  And  in  an  action  upon  an  assignment  of  an  account 
for  a  sum  due.  and  for  a  further  sum  to  be  earned  in  the  future, 
the  complaint  is  not  demurrable  on  the  ground  that  it  is 
founded  on  a  claim  not  in  existence  at  the  time  of  the  assigur 
ment,  as  it  states  a  cause  of  action  for  the  sum  which  was  due 
at  that  time.^"*  The  complaint  in  an  action  on  an  assigned  claim 
for  services^  which  the  defendants  employed  the  assignors  to 
perform,  and  for  which  they  promised  to  pay  them  a  specified 
sum,  does  not  state  a  cause  of  action,  if  it  fails  to  allege  that 
such   services   were   performed.^'* 

5  340.  Assigninents  of  bonds,  notes,  etc.  An  assignee  of 
bonds,  notes,  etc.,  may  maintain  an  action  thereon  in  his  own 
name.'^  The  assignment  of  a  note  to  the  maker  is  a  payment 
of  the  same.  And  the  same  is  true  of  a  joint  and  several  note, 
assigned  to  one  of  the  makers.^®  Payment  by  the  maker  of 
a  nonnegotiable  note  of  the  sum  due  upon  an  attachment 
against  the  payee,  without  notice  of  an  assignment,  will  bar  a 
suit  by  the  assignee.^'^  Although  a  bill  or  note  payable  to  order 
can  only  be  made  negotiable  by  an  indorsement  by  the  payee, 
still  a  transfer  by  delivery  is  sufficient  to  entitle  the  holder  to 
sue  thereon  in  his  own  name,  the  same  as  in  assignments  of 
other  choses  in  action.^^     An  assignment  of  a  chose  in  action 

49  Rullard  v.  Kinney,  10  Cal.  03. 
'<<>  ArnistronR  v.  Cushney,  4,3  Barb.  340. 
SI  Ryan  v.  Maddux.  0  Cal.  247. 

w  Rice  V.  Yakima,  etc.,  Railway  Co.,  4  Wash.  St.  724. 
53  Id. 

''4Wf>iner  v.  Lee  Sliinjr.  12  Ores.  270. 

'•r.  Manflfvillo  v.  Riddlo.  1  Cranch,   290;  Cottle  v.  Cole,  20  Iowa, 
481. 
."•«  Cordon  v.  Wansey,  21  Cal.  77. 
'•'  Wfiinvifk  v.  Render.  33  Mo.  80. 
58  Brown  v.  Richardson,  20  N.  Y.  472;  S.  C,  1  Bosw.  402;  Billings 


271  ASSIGNEES    AND    DEVISEES.  §  oil 

absolute  in  its  terms,  so  that  by  virtue  thereof  the  whole  ap- 
parent legal  title  passes  to  the  assignee,  constitutes  the  assignee 
the  real  party  in  interest  for  the  purposes  of  an  action,  although 
the  assignment  was  solely  for  the  purpose  of  bringing  a  suit, 
and  the  assignee  was  to  pay  to  the  assignor  everything  realized 
from  the  suit  after  deducting  expenses.^*^  It  is  enough  for  the 
defendant  to  know  that  the  plaintilf  is  the  party  in  legal  in- 
terest, and  that  a  recovery  by  him  will  be  full  protection  against 
another  suit  by  the  assignor.*^"  And  where  an  assignee  to  whom 
a  claim  has  been  assigned  for  the  purpose  of  bringing  suit,  has 
elected  to  sue  but  one  of  the  joint  makers  or  but  the  principal 
debtor  without  suing  the  other  joint  debtors  or  the  sureties, 
and  has  recovered  judgment  against  one  joint  maker  or  the 
principal  debtor,  the  other  joint  makers  or  the  sureties  can 
set  up  such  judgment  in  bar  of  the  assignor's  suit  against 
them.®^  Notice  to  the  debtor  by  the  assignee  of  a  chose  in 
action  is  not  necessary  to  complete  the  assignment,  in  the  ab- 
sence of  any  controversy  between  different  assignees  or  attach- 
ing creditors  of  the  fund  assigned.^^  So,  an  assignee  of  a  pres- 
ent existing  cause  of  action  may  commence  an  action  thereon 
on  the  same  day  that  the  assignment  to  him  is  made.^  iVnd 
the  right  of  an  assignee  of  a  chose  in  action  to  maintain  an 
action  thereon  in  his  own  name  before  a  justice  of  the  peace  is 
recognized.^ 

I  341.  Assignment  by  a  corporation.  In  an  action  brought 
by  the  assignee  of  a  corporation,  it  is  not  essential  to  par- 
ticularly state  the  fact  of  incorporation.  A  statement  of  the 
name  of  the  corporation,  and  of  the  making  of  the  agreement 
between  them,  and  of  what  the  corporation  did  in  fulfillment  of 

V.  .Tanp,  11  Barb.  f;20:  White  v.  Brown.  14  How.  in-.  282;  Hmishton 
V.  Dodpe.  .')  Bo8w.  320;  Sexton  v.  P^leet,  2  Hilt.  485;  Gould  v.  Ellery, 
.39  Biu-b.  lf.3;  Faninpton  v.  Park  Bank,  id.  04.''). 

69  Wines  V.  Rio  Grande,  etc..  R.  R.  Co.,  9  Utah,  228:  and  see  Sauls- 
bury  V.  CorAvin.  40  Mo.  .\pp.  37.3;  Younj;  v.  Ilndsnii,  99  Mo.  102; 
Sheridan  v.  Mayor,  i\H  X.  Y.  .''.(»•  Cn-lff  v.  Riordan,  99  Cal.  316; 
Tnller  v.  Arnold,  98  id.  r)22. 

fio  Anderson   v.  Tfeardon,  40  MiTin.  l.V,. 

fli  Anderson  v.  Yosfiiiitf  Min.  Co.,  9  I'tali.  420. 

«2.Tarkson  v.  Hainm.  14  Col.  .'".8. 

63  FrasfT  V.  Oakd.ile  Lninber,  efr..  Co.,  7."'.  Cal.  188. 

w  Layton  v.  Klrkeudall,  20  Col.  230. 


§§  o-lv',  iMo  luK.Ms  01'  cu.MiM.Ai.N  rs.  27 i 

its  agrcriiioul,  is  sullk'ioiil.'"'^  And  ihe  complaiiiL  uccd  not  aver 
thai  till'  diivi'lurs  wuro  aulliori/ed  Lo  make  it.''"  The  assignee 
of  a  elaiiii  against  the  receiver  of  a  railway  company,  having  ob- 
tained permission  from  the  proper  court,  may  bring  suit  in  liis 
own  name,  and,  tliougli  the  assignment  be  indorsed  to  another, 
ho  may  still  maintain  the  action  in  his  own  name  so  long  us 
he  retains  possession  of  the  instrument  of  assignment,  and  may 
cause  the  record  to  be  amended  by  adding  the  name  of  the  in- 
ilorsee  as  tlie  use  party,  who  will  thereafter  be  entitled  to  con- 
trol the  proceedings,  and  will  be  bound  by  the  judgment.*^^ 

i  342.  Assignment  of  debts.  An  order  drawn  by  a  creditor 
on  his  debtor  is  priDia  facie  evidence  of  an  assignment  of  the 
debt  pro  tanio,  and  the  assignee  may  recover  on  the  same.'*'* 
And  drawees  with  notice  are  liable  to  payees  without  an  express 
promise  to  pay.  In  Maine,  an  assignment  of  a  debt  may  be 
made  by  parol,  or  may  be  inferred  from  the  acts  of  the  parties.^'-' 
And  in  Xew  Hampshire  also  claims  for  torts  as  well  as  for  prop- 
erty may  be  assigned  by  parol.'''*'  In  Missouri,  a  general  con- 
veyance of  all  "  debts  that  may  be  due,"  without  a  schedule, 
passes  to  the  grantee  such  a  title  as  will  enable  him  to  recover 
from  a  subsequent  general  assignee.'^^ 

§  343.  Assignment  of  goods  not  in  possession.  Where  the  ven 
dor  of  goods  is  not  at  the  time  of  sale  in  possession,  the 
transfer  is  an  assignment,  and  an  actual  and  continued  change 
of  possession  is  required  equally  as  in  cases  of  sale  by  one  in 
possession.^2  ^nd  where  B.,  the  vendee,  assigned  to  C.  a  con- 
tract for  the  delivery  of  goods  to  arrive,   and   C,   after  the 

65  Kennedy  v.  Cotton,  28  Barb.  .59.  A  complaint  on  an  account 
assigned  to  the  plaintiff  by  a  certain  company  which  fails  to  show 
that  such  conii>any  had  any  legal  existence  or  the  nature  thereof, 
is  had  when  specially  demurred  to  upon  that  ground.  Herbst  Imp. 
Co.  v.  Hojran.  16  Mont.  384. 

6fl  Nelson  v.  Eaton.  16  Abb.  Pr.  11.3. 

67.Tackson  v.  Hamm.  14  Col.  .58. 

«R  McEwan  v.  Johnson,  7  Cal.  2,58;  Wheatley  v.  Strobe,  12  id.  97; 

73  Am.  Dec.  522;  Pope  v.  Huth,  14  Cal.  408;  Hobart  v.  Tyrrell,  68 
id.  12;  see  Cashman  v.  Harrison,  90  id.  297;  National  Bank  v.  Herold, 

74  id.  6<^)3. 

68Garnsey  v.  Gardner,  49  Me.  167. 

70  .Jordan  v.  rjillen,  44  N.  IT.  424. 

71  Pafre  v.  Gardner.  20  Mo.  507. 

72  Weil  V.  Paul,  22  Cal.  492. 


27'd  ASSIGNEES   AND    DEVISEES.  §§  o-i-i    oiG 

arrival  of  the  goods,  teudered  payment  for  the  same,  it  was 
held  that  A.,  the  vendor,  was  not  entitled  to  notice  of  the 
assignment,  but  that  C.  might  enforce  the  contract  against 
himJ^ 

§  344.  Assignment  of  lease.  An  assignment  of  all  right, 
title,  and  interest  of  the  lessee  conveys  his  right  for  compensa- 
tion for  new  erections  on  the  land  under  the  covenants.'^^  A 
lease,  or  an  interest  therein,  or  a  right  of  entry  for  breach  of  one 
of  its  conditions,  may  be  assigned,  so  as  to  entitle  the  assignee 
to  sue  in  his  own  name.'^^ 

§  345.  Assignment  of  mortgages.  A  mortgage,  independent 
of  the  debt  ii  is  intended  to  secure,  has  no  assignable  ciuality.'^^ 
The  assignment  of  the  debt,  note,  or  bond  secured  by  the  mort- 
gage, even  Avithout  a  formal  transfer  of  the  security,  carries 
the  mortgage  with  it."  In  California  it  has  been  held  that  the 
equitable  lien  which  a  vendor  of  real  estate  retains  u])on  the 
property  for  the  unpaid  purchase  money  is  not  assignable.''^ 
I'>tit  a  claim  for  damages  for  trespass  on  land  is  assignal)le,  and 
the  assignee  may  maintain  an  action  for  the  same  in  his  own 
name.''® 

§  346.  Assignment  of  insurance  policy.  An  assignment  of 
a  policy  of  insurance  on  a  stock  of  goods  attaches,  in  equity, 
as  a  lien  upon  the  amount  due  on  the  policy  to  the  extent  of  the 
debt  as  soon  as  the  loss  occurs.®** 

73  Morgan  v.  Lowe,  r^  Cal.  320. 

74  Hunt  V.  T>anfortli.  2  Curtis  C.  C.  ^2. 

7.'.  Avorill  V.  Taylor,  8  N.  Y.  44:  -Van  Rensselaer  v.  Kail,  12  N.  Y. 
100;  62  Am.  Dec.  142;  Van  Rensselaer  v.  Hays,  12  N.  Y.  68. 

76  Polhemus  v.  lYainer,  .30  Cal.  6S.">. 

77  Hatch  V.  White,  2  Gall.  in2:  ^Villis  v.  Farley,  24  Cal.  400;  Hurt 
V.  Wilson,  38  id.  263;  see  Morrison  v.  Mendenhiill,  18  Minn.  232; 
Strause  v.  .Tosephthal,  77  N.  Y.  622. 

7«  Ranm  v.  Gri^'shy,  21  Cal.  172;  81  Am.  Deo.  in;',;  I^ewis  v.  Covil- 
laud.  21  Cal.  178;  Williains  v.  Youmk.  i<l.  227.  In  an  action  by  an 
a.ssinnee  to  forerlose  a  Hen  for  materials  furnished  for  and  used 
in  the  construction  of  m  ImildinK,  it  is  not  necessaiy  to  aver  that 
tlie  assiKumeiii  was  In  writiu).'.  An  aiiej^atlon  tliat  tlie  claim  was 
assigned  to  I  lie  i»lriiiitiff  is  Kuflicient.  I'atent  Brick  Co.  v.  Moore, 
1',  Cal.   20r,. 

70  :\rore  V.  .M;is.sini.  .",2  (';il.  .".(lO. 

fiOBIbend  v.  L.  i*:,-  I,.  V.  ^-  I,,  ins.  Co.,  .30  Cal.  78;  I'oiio  v.  Huth, 
14  id.  403;  Wlieatley  v.  Strolie,   iii  [,].  f>2;  73  Am.  Dec.  522. 

Vol.  1—35 


i;{5  ;54T.  MS  FORMS    Ol'    COMI'LAIXTS.  274 

$  347.  Assignmeuts  of  judgments.  A  cause  of  action  which 
doi'ti  uot  ijurvive  to  the  personal  representatives  is  not  assign- 
able. But  ii  suit  hai>  been  brought  on  such  a  cause  of  action, 
ami  judgment  recovered,  the  judgment  is  considered  as  a  con- 
tract,, and  is  capable  of  assignment,  even  after  the  death  of  tlie 
judgment  creditor.  A  verdict,  however,  on  such  a  cause  of 
action  does  uot  have  the  same  effect.*^  If  a  judgment  creditor 
assign  the  judgment,  and  the  judgment  debtor  without  notice 
of  the  assignment  afterwards  pays  the  same  voluntarily  to  the 
sheriff,  by  reason  of  service  of  garnishment  process  upon  him, 
the  assignee  may  still  enforce  the  judgment.^^  In  a  suit  to 
enforce  a  judgment  lien  on  real  estate  brought  by  the  assignees 
of  the  judgment,  the  judgment  and  tlie  assignment  must  be  set 
forth.®^  The  assignment  of  a  judgment  may  be  by  writing  or 
by  merely  verl)al  transfer;'*^*  and  the  assignee  of  a  judgment  can 
maintain  an  action  thereon  in  his  own  name.^^  So,  one  to  whom 
a  judgment  has  been  assigned  for  the  benefit  of  himself  and 
another  may  sue  thereon  in  his  own  name.^*^  And  where  the 
proceeds  of  the  judgment  assigned  are  to  be  paid  to  several  per- 
sons, the  assignee  of  the  judgment  may  nevertheless  bring  an 
action  thereon  in  his  own  name  without  joining  with  him  the 
other  parties  interested.*" 

S  348.  Assignment  of  corporate  stock.  An  assignment  of 
shares  of  stock  in  a  corporation  under  the  California  statute  of 
1853,  by  delivery  of  the  certificates,  without  transfer  on  the 
books  of  the  company,  is  invalid  against  subsequent  purchasers 
on  execution  against  the  assignor,  without  notice  of  the  assign- 
ment.^* An  assignment  by  a  stockholder  of  his  shares  of  stock 
in  a  corporation  carries  with  it  his  proportionate  share  of  the 
assets,  including  all  undeclared  dividends.®^ 

Ri  Lawrence  v.  Martin.  22  Cal.  173. 

82  Rrovin  v.  Ayres,  .3.3  Cal.  525;  91  Am.  Deo.  655. 

83  Brookshire  v.  Lomax,  20  Ind.  512. 

«4WinbeiTy  v.  Koonce,  83  N.  C.  351;  Steele  v.  Thompson,  62 
Ala.  323. 

w  Moore  y.  Nowell,  94  N.  C.  265.  Otherwise  in  Alabama.  Wolfife 
V.  Eberlein.  74  Ala.  99;  49  Am.  Rep.  R09. 

W' Bonne  v.  Sohiiffko,  13  S.  W.  Rep.  CSla.)  82. 

87  W'albnrn  v.  rhenanlt,  43  Kan.  .3.52. 

8^^  Weston  V.  Bear  Biver.  etc..  Co..  5  Cal.  186;  63  Am.  Dec.  117; 
Naf:le«-  v.  Par-ifif  Wharf  Co.,  20  Cal.  529;  People  v.  Elmore.  35  id. 
6.".3;  Parrott  r.  Byres,  40  id.  614. 

89  Jermain  v.  Lake  Shore,  etc..  R.  R.  Co.,  91  N.  Y.  483. 


375  ASSIGNEES    AXD    DEVISEES.  §  319 

§  349,  EfEect  of  assignment.  In  addition  to  the  provisions 
of  the  Codes  which  require  every  action  to  be  prosecuted  in 
the  name  of  the  real  party  in  interest  —  the  effect  of  which,  as 
lias  been  seen  above,  is  to  permit  the  assignee  to  bring  the  ac- 
tion in  his  own  name  —  there  is  another  very  important  section 
which  should  be  considered  in  this  connection.  The  Codes, 
with  very  little  difference  in  the  language,  provide  that  "  in 
the  case  of  an  assignmont  of  a  thing  in  action,  the  action  of 
the  assignee  shall  be  without  prejudice  to  any  set-off  or  other 
defense  existing  at  the  time  of  or  before  notice  of  the  assign- 
ment; but  this  section  shall  not  apply  to  negotiable  promissory 
notes  and  bills  of  exchange,  transferred  in  good  faith  and  upon 
good  consideration,  before  maturity. '"^'^  This  statutory  provi- 
sion is  a  substantial  embodiment  of  the  familiar  rule  which 
existed  prior  to  the  adoption  of  the  Codes,  that  the  assignee  of 
a  thing  in  action,  not  negotiable,  takes  the  same  subject  to  all 
the  defenses,  legal  or  equitable,  existing  between  the  original 
parties.^^  Or,  as  the  rule  is  stated  by  Johnson,  J. :  ^'  In  the 
case  of  the  assignment  of  a  thing  in  action,  the  action  of  the 
assignee  shall  be  without  prejudice  to  any  set-off  or  other  de- 
fense existing  at  the  time  of  or  before  notice  of  the  assignment, 
which  would  have  been  available  to  the  defendant  had  the  ac- 
tion been  brought  in  the  name  of  the  assignor.^^     This  doctrine 

eo  Spe  Cal.  Code  Civ.  Pro.,  §  SfiS. 

»i  McCabe  v.  Gray,  20  Cal.  .509;  Northam  v.  Gordon.  23  Id.  25.5; 
Truebody  v.  Jacobson,  2  id.  269;  Olds  v.  Cummings,  31  111.  188; 
Fortier  v.  Darst.  id.  212;  Shaw  v.  Shaw,  4  Cl-anch  C.  C.  715;  Shirras 
V.  Caig,  7  Cranch,  34;  Kinsman  v.  Parkhurst.  18  How.  289;  IMmms 
V.  Shannon,  19  Md.  296;  81  Am.  Deo.  632;  Littlefleld  v.  Albany 
County  Bank,  97  N.  Y.  581;  Davis  v.  Bechstein,  69  id.  440;  25  Am. 
Rep.  218;  Raybum  v.  ITurd,  20  Oreg.  229;  Hamilton  v.  Insurance 
Co.,  65  Ga.  7.50;  Calvin  v.  Steritt,  41  Kan.  215;  James  v.  Yaeger, 
8(!  Cal.  184. 

t'2  Beckwlth  v.  Union  Bank,  9  X.  Y.  211;  and  see  to  the  same  effect, 
-Myers  v.  Davis,  22  id.  489;  Ingraham  v.  Disborough,  47  id.  421; 
.Andrews  v.  Gillespie,  Id.  487;  Bush  v.  Lathrop,  22  Id.  535;  Reeves 
v.  Kimball,  40  id.  299;  Wood  v.  Peny,  1  Barb.  114;  Ain.slie  v. 
Boynton,  2  id.  258;  Commerc-lal  Bank  v.  Colt,  15  id.  506;  Western 
Bank  v.  Sherwood,  29  Id.  3S3;  Blydcnbnrgh  v.  Thayer.  3  Keyes, 
293;  :Martin  v.  Kunzmiiller,  .37  \.  Y.  39(>;  Fuller  v.  Steiulitz,  27 
Olilo  St.  .3.55:  Fera  v.  Wlr-kh;iiii.  1.35  N.  Y.  22:'..  In  Callaiian  v. 
Edwards.  32  id.  486,  tlie  niic  is  flins  stated:  "  .\n  assign(>e  of  a 
chose  in  a«tion  nut  i)egotial)Ie  lakes  tlie  thing  assigned,  .subject  to 
all  tlie  riglit.s  wliich  tlie  debtor  liad  af'(]uired  in  respect  thereto 
prior  to  the  assignment,  or  to  the  time  notice  was  given  of  it,  when 


§  34it  rOUMS   OF   COMPLAINTS.  J^TG 

has  boon  applii'il  to  assigmnonts  of  bonds  under  the  statutes  of 
\"irginia  ami  liuliaiia;'-'^  in  ;u3tions  by  the  assignees  of  mort- 
gages;'*^ in  an  ariinn  on  a  nonnegotiable  warehouseman's  re- 
ceipt;'"^ in  an  at-tion  by  the  assignee  of  judgments  and  decrees;""^*^ 
in  aetions  by  tlie  assignees  for  the  benefit  of  creditors;®'^  in 
actions  by  the  assignee  of  negotiable  paper  after  it  has  lost  its 
negotiable  character;"^  in  actions  by  the  assignee  of  the  vendee, 
to  compel  the  specific  perfoi'niance  of  a  contract  for  the  sale  of 
lands;"''  and  in  actions  by  the  assignee  of  a  partner.^"^ 

"When  the  assignee  of  a  thing  in  action,  which  is  subject  to 
equities  between  the  original  parties,  assigns  it  to  a  second  as- 
signee by  a  transfer  whicli  purports  to  convey  a  perfect  title, 
for  a  good  consideration,  and  without  any  notice  on  the  part  of 
the  second  assignee  of  any  defect  in  the  title,  the  question  has 
often  arisen,  whether  such  second  assignee  is  affected  by  the 
equities  which  existed  between  the  original  parties.  These 
equities  are  often  spoken  of  as  latent,  and  several  courts  have 
adopted  the  rule  that  such  latent  equities  can  not  prevail  against 
the  title  of  the  second  assignee.^*^^    The  effect  of  this  rule  is  to 

there  is  an  interval  between  the  execution  of  the  ti-ansfer  and  the 
notice."  In  California,  a  note  may  be  claimed  as  a  set-off  though 
not  due  at  the  time  the  defendant  received  notice  of  the  assignment 
of  his  notes  to  the  plaintiff,  if  it  became  mature  before  the  com- 
mencement of  the  action  by  the  plaintiff.  St.  Louis  Nat.  Bank  v. 
Gay,  101  Cal.  286;  and  see  Northampton  Bank  v.  Balliet,  8  Watts 
&  Serg.  311;  42  Am.  Dec.  297. 

»3  Scott  v.  Shreve,  12  Wheat.  60.5;  Bell  v.  Nimmo,  5  McLean,  110. 

84  Hubbard  v.  Turner,  2  McLean,  519;  Western  Bank  v.  Sher- 
wood. 29  Barb.  383. 

»5  Commercial  Bank  v.  Colt,  15  Barb.  506. 

»6Sampeyreao  v.  United  States.  7  Tet.  222;  Wells  v.  Clarkson,  2 
Mont.  230,  379;  5  id.  343. 

67  Marine  Bank  y.  Jauncey,  1  Barb.  486;  Maas  v.  Goodman,  2  Hilt. 
275. 

88Gwathney  v.  McLane,  3  McLean,  371;  Rounsavel  v.  Scholfield, 
2  Cranch  C.  C.  139. 

«e  Beeves  v.  Kimball,  40  N.  Y.  299. 

100  Nicoll  V.  Mumford.  4  Johns.  Oh.  522;  Rodriguez  v.  Heffernan, 
5  id.  417. 

101  Livingston  v.  Dean,  2  .Tolins.  Ch.  479;  Murray  v.  Lylburn,  Id. 
441;  Rodriguez  v.  ITefferaan,  5  id.  417;  Murray  v.  Ballou,  1  id.  560; 
Bebee  v.  Bank  of  New  York,  1  Johns.  529;  James  v.  Morey,  2  Cow. 
240;  Lofsey  v.  Simpson,  3  Stockt.  Ch.  246;  Bloomer  v.  Henderson.  8 
Mich.  395;  Croft  v.  Bunster,  9  Wis.  503;  Mott  v.  Clark,  9  Teun.  Si. 
399;  Taylor  v.  Gitt.  10  id.  428;  Metzgar  v.  Metzgar.  1  Rawle,  227; 
McConnell   v.   Wenrich,   16  Penn.    St.   365;   Moore  v.    Holcombe,   3 


277  ASSIGXEES    AND    DKV16EES.  §  349 

extend  to  the  assignment  of  ordinary  choses  in  action  the  well- 
settled  doctrines  which  apply  to  the  assignment  of  negotiable 
instruments.  The  better  doctrine,  however,  is,  and  the  one 
which  is  settled  by  the  weight  of  authority,  that  the  right  of 
the  second  assignee  under  such  circumstances,  is  subject  to  all 
the  equities  existing  in  favor  of  the  original  parties.  The  orig- 
inal assignee  can  not  convey  a  greater  title  or  interest  in  the 
subject  of  assignment  than  he  himself  has.^*^^  Where,  however, 
the  owner  by  his  own  affirmative  act  has  conferred  the  apparent 
title  and  absolute  ownership  ujjon  an  assignee,  upon  the  faith 
of  which  the  chose  in  action  has  been  purchased  for  value  by  a 
second  assignee,  the  owner  is  precluded  from  asserting  his  real 
title,  as  against  such  subsequent  puichaser,  by  the  application 
of  the  doctrine  of  estoppel.  This  rule,  altiiough  it  has  gen- 
erally been  applied  to  transfers  of  stock  certificates,  has  been  ex- 
tended by  some  courts  to  assignments  of  various  other  kinds 
of  choses  in  action. ^^'^ 

In  order  to  give  a  dc])tor,  when  sued  by  the  assignee,  the 
right  to  set  off  a  demand  against  the  assignor,  it  is  necessary  that 
such  demand  should  have  been  due  and  payable  at  the  time  of  the 
assignment,  and  not  have  matured  afterwards.^^     In  California, 

Leigh,  648;  Ohio  L.  Ins.  Co.  v.  Ross,  2  Md.  Cli.  25;  Sleeper  v.  Chai)- 
man,  121  Mass.  404;  Sumner  v.  Waugh,  56  111.  531;  Winter  v.  Bel- 
mont M.  Co.,  53  Cal.  428.  In  this  latter  case  the  plaintiff,  the  owner 
of  c*ertain  shares  of  stock,  transferred  them  on  the  books  of  the 
company  in  the  name  of  M.,  to  whom  a  certificate  was  issued.  M. 
afterwards  indorsed  the  certificate  in  blank  and  delivered  it  to  the 
plaintiff.  lie  then  stole  the  certificate  from  the  plaintiff  and  sold 
It  to  a  bona  fide  piu-chaser.  The  court  held  that  the  title  of  the  pur- 
chaser Avas  superior  to  that  of  the  real  owner. 

102  Bush  v.  Lathrop,  li2  N.  Y.  535;  Anderson  v.  Nicholas,  28  Id. 
600;  Reeves  v.  Kiniliall.  40  id.  21>f»;  Mason  v.  Lord.  id.  47(>;  Schafer 
V.  Reilly,  50  id.  (Jl;  Reid  v.  Sprague,  72  id.  4r)7;  McNeil  v.  Tenth 
Nat.  Bank.  55  Barb.  50:  "\\'illiams  v.  Tliorn,  11  Paige  Ch.  459;  Brad- 
ley V.  Root.  5  Id.  (\:'.2:  Marvin  v.  Inglis,  30  How.  Pr.  320;  Poillon  v. 
Mai-tin,  1  Sandf.  Oh.  560;  .ludson  v.  (\)rcoran.  17  IIow.  612;  Hallard 
V.  Burgett.  40  N.  Y.  314;  Davis  v.  Bechstein.  60  id.  440;  25  Am.  Rep. 
218;  Ingraham  v.  Disltontugh,  47  N.  Y.  421;  liCdwich  v.  McKim,  53 
Id.  307;  Cntts  v.  f;uild,  57  id.  220;  Barry  v.  Eq.  L.  Ins.  Co.,  50  id. 
587;  'i'rusfees.  etc.  v.  ^Vheeler,  (Jl  id.  88;  Sherwood  v.  Meadow,  etc.. 
Co..  .50  Csil.  112;  Chase  v.  Cliapln.  1.30  Mass.  128. 

103  McNeil  V.  Tenth  Nat.  Bank.  46  N.  Y.  325;  Holhnmk  v.  New 
Jersey  YAuc  Co.,  ."  id.  til6;  Condies  v.  Cluuidler,  33  Ohio  St.  178; 
Moore  v.  Metnipoljtan  Bank.  ."5  .\.  Y.  41;  Fai-mers'  Natioiial  Bank 
T.  FlPtchcr.  44  Iowa.  2.">2. 

i04Beckwitli  V.  rnionBank,  0  N.  Y.  211;  Smith   v.  Felton,  43  id. 


Js  :?4«»a  FOKMS    OV    COMI'LMNTS.  278 

howoviT,  a  diMiuuul  whieli  has  accrued  prior  to  notice  of  the 
ut^bigmiunt  is  allowed  to  be  set  ofi'.*"^  Negotiable  paper,  as- 
signed after  inaturity.  is  subject  to  the  same  rules  in  regard  to 
set-otr  as  other  thoses  in  action  not  negotiable.^^^*^  In  order  to 
entitle  a  defendant  to  set  oil"  a  demand,  it  is  necessary  that  the 
claim  asserted  against  him  should  alTect  him  in  the  same  char- 
acter as  the  demand  attempted  to  be  set  olf.  Thus  one  sued  as 
an  individual  can  not  set  off  a  demand  due  him  as  an  execu- 
tor. ^^^^  When  notice  of  the  assignment  is  required  to  be  given 
by  the  assignee  to  the  debtor,  an  actual  notice  is  not  necessary. 
Any  notice  which  would  put  a  reasonable  man  on  inquiry  is 
sufficient. ^'^'^  One  who  sues  as  assignee  can  not  maintain  his 
title  by  proof  of  an  assignment  made  after  suit  brought.^"^  But 
a  neglect  to  record  an  assignment  within  the  statutory  period 
fixed  therefor,  in  cases  where  an  assignment  must  be  recorded, 
does  not  make  it  fraiidulent.^^*^ 

§  349a.   Assignment  after  suit  —  party  in  interest.     Where  a 

claijn  lias  been  assigned  after  suit  brought  the  assignee  has 
the  right  to  continue  the  suit  in  the  name  of  the  assignor;^^^ 
but  when  judgment  is  recovered  thereon,  a  creditor's  bill  based 
upon  that  judgment  must  be  brought  in  the  name  of  the  as- 
signee, and  when  brought  in  the  name  of  the  assignor,  no 
amendment  as  to  parties  can  cure  the  defect,  but  the  suit  must 
be  dismissed. ^^^ 

419:  Barlow  v.  Meyers.  0  N.  Y.  Sup.  Ct.  183:  Meyers  v.  Davis,  22 
X.  Y.  489:  Chance  v.  Isaacs.  5  Paifre.  .^)92;  Bradley  v.  Angeli.  3  N. 
Y.  47.5;  Martin  x.  Kunzmuller,  37  id.  39(>;  Watt  v.  Mayor,  1  Sandf. 
23;  Wells  v.  Stewart.  3  Barb.  40;  Oaden  v.  Prentice,  33  id.  1()0; 
Adams  v.  Kodarmel,  19  Ind.  3.39;  Wall^er  v.  McCay,  2  Mete.  294; 
Williams  v.  Brown,  2  Keyes,  48fi. 

105  McCabe  v.  Grey,  20  Cal.  .509;  and  see  St.  Louis  Nat.  Banli  v. 
Oay.  101  id.  2S6  (supra). 

IOC  Harris  v.  Burwell.  0,5  N.  C.  584;  Leavenson  v.  Lafontane,  3 
Kans.  523:  Norton  v.  Foster,  12  id.  44;  McPherson  v.  Weston,  85 
Oal.  90:  \\oo(]  v.  Bmsh,  72  id.  224. 

lOT  Harlow  v.  Myers,  0  N.  Y.  Sup.  Ct.  183. 

lORWilldns  V.  Batterman,  4  Barb.  47;  Williamson  v.  Brown,  15 
N.  Y.  354. 

if'»  rJarrifriu-  v.  Loesclier.  3  Bosw.  .578. 

iifDcnzcr  v.  Mnndy.  5  Rob.  036. 

Ill  National  Bank  v.  Hapjrood,  9  Utah,  85;  and  see  Hestres  v. 
Brennan.  37  Cal.  385;  O'Neil  v.  Dousrherty,  40  id.  .576. 

"2  Wilson  V.  Kiesel,  9  Utah,  397;  and  see  Dubbers  v.  Goux,  51 
Cal.  1.53. 


279  ASSIGNEES   AXD   DEVISEES.  §§  349b-351 

§  349b.  Pleading  —  matter  of  inducement.  In  an  action  by 
an  assignee  of  a  void  conuty  warrant  against  the  assignor,  the 
allegations  in  the  complaint  in  regard  to  the  warrant  can  only 
be  regarded  as  inducement  or  as  explanatory  of  the  cause  of 
action,  while  the  cause  of  action  for  which  recoA'ery  could  be 
had  is  the  amount  of  money  advanced,  with  interest.^^^ 

§   350.   By  assignee,  where  plaintiff  is  trustee. 
Form  Xo.   71. 

[Title.] 
The  plaintiff  complains,  as  assignee,  for  the  benefit  of  [state 
whom],  and  alleges: 

I.  [State  a  cause  of  action  accrued  to  the  assignor.] 

II.  That  on  the   day  of   ,  18.  .,  the 

said  C.  D.  assigned  all  his  property,  including  the  said  claim, 
to  the  plaintiff,  in  trust,  for  the  purpose  of  [state  the  purpose]. 

[Dejiaxd  of  Judgment.] 

§  351.  Who  are  trustees,  and  when  may  sue  alone.  The  pro- 
visions of  the  various  Codes  provide  in  efl'ect,  although  there 
is  some  slight  difference  in  their  language,  that  "  an  executor, 
or  administrator,  or  trustee  of  an  express  trust,  or  a  person  ex- 
pressly authorized  l)y  statute,  may  sue  without  joining  with  him 
the  persons  for  whose  benefit  the  action  is  prosecuted.  A  per- 
son with  wliom,  or  in  whose  name,  a  contract  is  made  for  the 
benefit  of  another,  is  a  trustee  of  an  express  trust  within  the 
meaning  of  this  section."^^*  In  order  to  entitle  a  trustee  to 
sue  alone  it  is  necessary  that  the  trust  should  lie  express,  that 
is,  a  trust  created  by  the  direct  and  positive  act  of  the  parties, 
by  some  writing,  deed,  or  will,  or  by  the  proceedings  of  a 
court. ^^•''  Among  such  trustees  which  have  been  permitted  to 
sue  alone,  without  joining  the  person  for  whose  benefit  the  ac- 
tion is  proscciitcd,  have  I)eon  included:  assignees  for  the  benefit 
of  creditors;"''  one  who  holds  a  security  which  is  to  be  collected 

113  Jones  v.  Ilaydfn,  ;{  C"ol.  App.  .''.O."*. 

114  See  Cal.  Codf  f'iv.  I'ro.,  §  ncO:  N.  Y.  Code  Civ.  Pro..  §  449; 
§  141,  ante;  PatclK-tt  y.  Pncific  Coast  Ry.  Co.,  100  Cal.  -WO.  An 
assljrrK-e  of  ;i  c-anse  «)f  action  to  estnblisli  and  enforce  a  trust  is 
the  real  parly  in  intcrcsl.  and  may  maintain  an  action  in  liis  own 
name.    OT'onnor  v.    Irvine.  74   Cal.  A\\T\. 

lis  C<>nsidcrant   v.    Mrisl)anc.  22  N.  Y.  3S9. 

iif' Mcllen  v.  riamilion  Fire  Fns.  Co.,  T^  Duor,  101;  Ryerss  v. 
Farwell,  9  Barb.  •!!.');  Lewis  v.  CJraliam,  4  Abb.  Pr.   10(1;  Fletcher 


i<  ;$.•):;>  rouMs  OF  cuMrLAiNT.s.  280 

ami  applioil  to  the  })aAim'nt  of  a  debt  due  by  himself;'"  the 
as=^iii"iu'o  (>r  a  stock  t^uhseription;'''*  the  president  or  treasurer 
of  an  iiu'orporale  associatjon;''"  or  the  nominal  proprietor  of 
an  incliviilual  bank;'-"  trustees  for  the  separate  use  of  married 
wc.nuTi;'-'  trustee  to  whom  personal  })roperty  is  conveyed  for 
the  use  of  a  husband  and  wife  for  life,  witli  remainder  to  their 
children,  in  an  action  to  recover  the  wrongful  conversion  of 
the  property  during  the  lifetime  of  the  parents;'^  a  receiver 
appointed  in  another  state;'^  a  grantee  of  lands  in  trust,  in  ac- 
tions for  the  possession  or  to  recover  damages  for  trespass.'^'* 
In  California,  the  priest  who  appears  to  have  charge  of  church 
property  is  the  proper  party  in  all  actions  concerning  it.  This 
would  appear,  however,  to  depend  entirely  upon  the  fact  of  in 
whom  the  title  stands,  and  whether  the  society  is  incorporated, 
and  how  incorporated.'^'' 

§  352.  Persons  with.  whom,  or  in  whose  name  a  contract  is 
made  for  the  benefit  of  another,  although  not  necessarily  trus- 
tees of  an  express  trust,  are  made  so  by  the  statute,  and  may 
maintain  an  action  in  their  own  name.  The  circumstances 
under  which  this  rule  is  generally  applied  are,  where  an  agent 
enters  into  a  contract  in  his  own  name,  and  tlie  promise  is 
made  directly  to  him,  and  not  to  the  principal.  In  such  case 
the  agent  is  permitted  to  sue  alone,  although  of  course  an  ac- 
tion might  also  be  maintained  in  the  name  of  the  principal. 
And  it  makes  no  difference  as  to  the  agent's  right  to  nii'iintain 

V.  Derrickson.  3  Bosw.  181;  St.  Anthony's  Mill  Co.  v.  Vandall, 
1  :*Iiuu.  240;  Foster  v.  Brown,  fr>  Ind.  234;  MeClain  v.  Weideu- 
meyt-r,  2.5  Mo.  3<;4;  Cummins  v.  Barkalow.  4  Keyes,  514. 

iiTGardinicr  v.  Kellofifr.  14  Wis.  (>0.~>:  Davidson  v.  Elms,  67  N.  C. 
228;  Moorehoad  v.  Hyde,  HH  Iowa,  382;  Thompson  v.  Toland,  48  Cal. 
99;  Clark  v.  Titconib.  42  Barb.  122. 

"8  Kimball  v.  Spicer,  12  Wis.  6G8. 

ii9Tibl)etts  v.  Blood,  21  Barb.  650. 

120  Buil>ank  v.  Beach,  15  Barb.  326. 

121  Reed  V.  Harris.  7  Robt.  151. 

122  Gihbeiis  V.  Genti-j-,  20  Mo.  468;  see,  also,  Richardson  v.  Means, 
22  id.  49."). 

123  Rinik  V.  St.  .Tolin.  29  Barb.  585;  Latlirop  v.  Knapp,  37  Wis. 
307:  fiarner  v.  Kent,  70  Ind.  428;  Hope  Life  Ins.  Co.  v.  Taylor,  2 
Robt.  278. 

124  Ooodrifli  V.  Milwaukee,  24  Wis.  422;  Boardman  v.  Beckwith, 
18  Iowa.  292;  Ilolden  v.  New  York  &  Erie  Bank,  72  N.  Y.  286; 
Tyler  v.  CranKer.  48  Cal.  259;  McKinnon  v.  McKinnon,  81  N.  C.  201. 

125  Santillan  v.  Moses,  1  Cal.  92. 


28i  ASSIGNEES   AND    DEVISEES.  §  352 

the  action,  whether  the  principal  was  known  or  disclosed  at  ihe 
time  ot  the  contract  or  uot.-^-*^  As  illustrations  of  all  kinds  of 
agents  who  are  thus  permitted  to  maintain  an  action  in  their 
own  name,  ma}'  be  mentioned,  ordinar}-  mercantile  factors,  who 
transact  business  in  their  own  name;^-"  an  auctioneer;^^  the 
managing  owner  of  a  vessel ;^^  a  contractor  for  the  benefit  of 
third  parties;^^*^  the  outgoing  trustees  of  an  association;^^^  the 
agent  for  a  foreign  principal,  or  officer  of  a  foreign  bank  or 
government  ;^^^  a  sheriff,  for  the  purchase  price  of  property  sold 
on  exec ut  ion  ;^^^  payee  of  a  note,  for  the  benefit  of  others ;^^* 
the  people,  where  bonds  are  taken  in  their  name  for  the  benefit 
of  individuals,^^'^  and  on  the  same  principle  bonds  given  to 
superior  officers  for  the  faithful  discharge  of  the  duties  of  the 

126  Morgan  v.  Keed,  7  Abb.  Pr.  215;  St.  John  v.  Griffith,  2  id.  198; 
Ericlvson  v.  Conipton,  6  How.  Pr.  471;  Considerant  v.  Brisbane, 
22  X.  Y.  389;  Rowhmd  v.  Phalen,  1  Bofew.  43;  Cheltenham  Firebriclc 
Co.  V.  Cook,  44  Mo.  20;  Wright  v.  Tiusley,  30  id.  389;  Weaver  v. 
Trustees.  28  lud.  112;  Rice  v.  Savery,  22  Iowa,  470;  Winters  v. 
I'aish,  34  Cal.  13(j;  Ord  v.  :McKee,  5  id.  51.5;  Scantiin  v.  Allison, 
12  Kan.  85;  Noe  v.  Christie.  51  N.  Y.  270;  Hubbell  v.  Medbury,  53 
id.  98;  Presb.  Soc.  v.  Beach.  8  Hun,  (i44;  People  v.  Slocum,  1  Idaho, 
•  ;2;  Thompson  v.  ^''argo,  «53  N.  Y.  479;  Grlnnell  v.  Schmidt,  2  Sandf. 
70(5;  T'nion  India  Rubber  Co.  v.  Tomliuson.  1  E.  I).  Smith,  304; 
Van  Lien  v.  Byrnes,  1  Hilt.  133;  Higgins  v.  Senior,  8  M.  &  W.  834; 
Albany,  etc..  Steel  Co.  v.  Lundberg,  121  U.  S.  4.".1. 

127  Grinnell  v.  Schmidt,  2  Sandf.  706;  Ladd  v.  Arkell,  5  Jones 
&  Sp.  35. 

128  Bogart  v.  O'Kcgan,  1  E.  I>.  Smith,  .590;  Hulse  v.  Young.  16 
Johns.  1;  Minturn  v.  Main,  7  X.  Y.  220;  Minturn  v.  Allen,  3  Sandf. 
399. 

i2flWard  v.  Whitney,  3  Sandf.  399;  Kennedy  v.  Eilau,  17  Abb. 
Pr.  73;  Houghton  v.  I.yncli,  13  Minn.  85. 

130  Rowland   v.   Plialen.    1    Bosw.  43. 

131  Kavis  V.  Gjirr,  6  X.  Y.  124. 

i:i2ronsiderant  v.  Brisbane,  22  X.  Y.  .389;  Ilabicht  v.  Pemberton. 
'  Sandf.  057;  Myers  v.  Machado,  6  Duor.  678;  Peel  v.  Elliott.  10 
IIiiw.  I'r.  483;  Rcjiuldic  of  Mexico  v.  .Arvniigois,  11  id.  1. 

13.3  Arnislrnng  v.  ^■^)^lan,  11  Miini.  220;  McKee  v.  Lineljcruer. 
09  N.  C.  217. 

114  Scantiin   v.  Allison,   12   Kan.  85;  Ord   v.   McKee,  5  Cal.  .51.5. 

IM  peojde  v.  XmtoM,  9  X.  Y.  17<i:  Bos.  v.  Seaman.  2  C.  R.  1; 
People  V.  La  WW,  3  .\lili.  Pr.  4.5U;  Pcojde  v.  Walker,  21  P,.irb.  O.'.t); 
ITtmlcr  V.  Commissioners,  in  Olijft  St.  515;  State  v.  Moore.  19  Mo. 
369:  Meier  v.  Lester.  21  id.  112:  Shelby  Co.  v.  Simmonds,  .33  Iowa, 
345:  Annett  v.  Kerr.  28  iTow.  Pr.  .".21;  People  v.  Townsend,  37 
Barb.  520;  Baggott  v.  Boulger.  2  Duer,  100. 

36 


^§353,354  rouMs  ok  roMi'LAiNTs.  ^b^ 

oblio-or.'-'^  On  I  he  wiIut  hand  uiic  who  is  a  mere  agent,  not 
onibratvil  within  the  description  of  the  statute,  can  not  prose- 
I'Ute  an  aetion  in  his  own  name,  on  a  contract  made  in  the 
name  of  his  principal. ^^^ 

§  353.  Averment  of  trustee  —  relation.  In  an  action  brought 
bv  an  express  trustee,  or  by  one  in  wliose  name  a  contract 
is  made  for  the  benelit  of  another,  the  general  rule  of 
pleading,  that  the  plaintiff  must  show  title  in  himself  in  the 
capacity  in  which  he  sues,  prevails.  Unless,  therefore,  the  de- 
scription of  the  obligation,  and  the  breach  thereof,  disclose 
such  facts,  the  complaint  must  make  a  positive  and  issuable 
averment  of  the  trust  or  agency.^^^''  Thus,  one  who  claims  as  a 
substituted  trustee  under  a  will,  should  state  all  the  material 
facts  distinctly  in  his  bill.  If  the  will  provides  two  modes  for 
the  appointment  of  new  trustees,  he  must  state  in  which  mode 
he  was  appointed.^^^ 

§  354.  Cestui  que  trust,  when  may  sue.  A  cestui  que  trust 
of  an  express  trust  has  no  right  of  action  until  the  trust  is 
denied,  or  some  act  is  done  by  the  trustees  inconsistent  with 
the  trust;  and  until  then  the  Statute  of  Limitations  does  not  l)e- 
gin  to  run.  Thus,  when  a  person  takes  a  title  in  his  own  name, 
at  the  request  of  another,  who  furnishes  the  consideration,  the 
former  has  the  right  to  presume  that  he  is  to  hold  it  until  a 
demand  is  made  upon  him  for  it.^*°  And  where  the  share  of 
one  of  several  ccstuis  que  trust  in  a  trust  fund  is  ascertained  and 

130  RtillwoU  Y.  Hurlbert.  18  N.  Y.  374;  Fuller  v.  Fullerton,  14 
Barb.  50;  People  v.  Clark.  21  id.  214;  People  v.  Norton.  9  N.  Y.  176; 
See,  as  to  further  instances,  Fargo  v.  Owen,  79  Hun,  181;  Stilwell 
V.  Hamm.  97  Mo.  579;  Coffin  v.  Hydraulic  Co.,  I3(v  N.  Y.  055; 
Cassidy  v.  AVoodward,  77  Iowa,  354;  McLaughlin  v.  First  Nat.  Bank, 
r,  Dak.  400;  Lundberg  v.  Elevator  Co..  42  Minn.  37. 

137  Swift  v.  Swift.  46  Cal.  2C>0;  Bobbins  v.  Deverill,  20  Wis.  1,50; 
Rodficld  v.  Middleton.  7  Bosw.  049;  Kawlings  v.  Fuller.  31  Ind.  2.55; 
White  v.  Clioiiteau,  10  Barb.  202;  Ferguson  v.  :\IcMahon,  .52  Ark. 
433. 

i3fi  Freeniiin  v.  Fubon  Fire  Ins.  Co.,  13  Abb.  Pr.  124.  One  suing 
ns  trustee  ninst  state  the  farts  showing  the  trust  relation.  Wilson 
V.  Polk  Comity.  112  Mo.  120;  :Mound  City,  etc.,  Ass'n  v.  Slauson, 
65  Cal.  425. 

isocruger  v.  Ilalliday,  11  Paige,  314. 

140  White  V.  Sheldon.  4  Xev.  280;  see  Howard  v.  Patterson, 
72  Me.  57;  Deronie  v.  Vose,  140  Mass.  575. 


283  ASSIGNEES   AXD    DEVISEES,  §§  355-358 

known,  he  may  maintain  a  snit  for  a  breach  of  the  trust  against 
the  trustees,  without  Joining  the  other  cestiiis  que  triist}'^^ 

§  355.  Notice  of  trust.  Where  an  assignment  is  made  to 
one  as  trustee  of  a  mercantile  firm,  and  he  receives  from  an 
obligor  a  deed  for  land  to  members  of  the  firm,  and  the  firm 
sold  the  land  to  their  successors  in  business,  some  of  the  origi- 
nal firm  being  a  portion  of  such  successors,  the  purchasers  are 
chargeable  with  notice  of  the  trust.^"*^ 

S  356.  Trtist  deed.  In  Nevada,  under  section  55  of  the 
statute  concerning  conveyances  (Statutes  of  1861),  a  declara- 
tion of  trust  as  to  land  must  be  by  deed  or  conveyance,  in 
writing,  subscribed  by  the  party  declaring  the  same,  or  by  his 
lawful  agent  thereunto  authorized  by  writing.^"*^ 

§  357.  Who  may  assign.  An  administrator  of  an  estate  in 
Xew  York  may  assign  a  judgment  obtained  there  by  an  in- 
testate against  one  who  has  since  removed  to  California.^'*'* 

{  358.  "Where  plaintiff  is  a  devisee. 
Form  No.  72. 
[Title.] 
The  plaintiff,  as  devisee  of  A.  B.,  deceased,  complains,  and 
alleges: 

I.  (State  cause  of  action  accrued  to  deceased.] 

II.  That  the  said  A.  B.  was  seised  of  the  estate  hereinbefore 

mentioned,  and  that  he  died  on  the day  of , 

18.  .,  at ,  and  by  his  last  will  devised  the  same  to 

this  plaintiff. 

[Demand  of  Judgment.] 

141  PirkerinK  v.  DpRochemont.  4.")  X.  II.  67. 

142  Conm-lly  v.  Peck,  (\  Cal.  .'',4.S. 

I*'!  Sinie  V.  Howard,  4  Nev.  47."?;  and  soo  Bowler  v.  Curler,  21 
id.  l.')8.  In  most  of  tho  states  an  express  trust  in  lands  ran  only 
be  created  by  a  written  instrument.  See  Harr  v.  O'Donnell,  Tti 
Cal.  400:  9  Am.  St.  Rej).  242:  I>oran  v.  Horan.  HI)  Cal.  :^n :  Crecn  v. 
Cates,  -?,  Md.  11.';  Donlin  v.  Pradh-y.  11'>  111.  412. 

H4  I,ow  V.  Pnrrows,  12  Cal.  1S1.  A  f<irei;:n  executrix  may  main- 
tain an  fiction  in  C:ilifornia  in  her  individnjil  nnme  on  a  judfjiiient 
recovered  by  lier  as  executrix  in  another  slate  en  a  del)t  due  to  Ik  i- 
tr'stator.  and  the  averments  in  the  complaint  of  the  olticial  capacity 
of  the  plaint i(T  are  mere  sui-plnsafre.  and  may  l)e  disrei^arded. 
Lewis  V.  Adams.  70  Cal.  403;  OD  Am.  Rep.  423. 


§§  o.Mt-oCil  roKAhS    Ui'    CUMI'LAIMS.  '2ii4: 

;  359.  Assets,  allegation  of.  Where  one  of  several  heirs  is 
suoil  (111  hit;  }ir()iniso  to  |)ay  the  debt  of  the  ancestor,  the  plain- 
till'  ni'i'tl  imt  allege  tluit  the  defendant  or  lieirs  had  asscts.^"*'"^ 
Wliore  the  will  by  construction  shows  an  intention  to  charge 
the  real  estate  with  the  payment  of  a  legacy,  it  is  not  necessary 
to  aver  in  tlie  bill  a  deficiency  of  personal  assets.^'*''  The  above 
form  of  allegation  is  sufficient  on  demurrer. ^^'^ 

§   360.   By  an  assig-nee  for  the  benefit  of  creditors. 
J'onii  No.   7J. 
[Title.] 
The  plaintiff,  as  assignee  for  the  benefit  of  the  creditors  of 
,  complains  of  the  defendant,  and  alleges: 

I.  [State  a  cause  of  action  accrued  to  the  assignor.] 

II.  That  on  the    day   of    ,   18.  .,  at 

,  the  said assigned  all  his  property, 

including  the  said  claim,  to  the  plaintiff  [in  trust  for  the  pur- 
pose of  paying  all  his  debts]. 

[Demand  of  Judgment.] 

§   361.   An  assignee  for  the  benefit  of  creditors  is  a  trustee 

of  an  express  trust,  and  as  such  he  is  entitled  to  sue,^^*  or  to 
defend  an  action,  without  joinder  of  a  beneficiary.^*^  He  must 
allege  in  his  complaint  that  he  sues  as  such,  or  the  court  will 
not  relieve  him  from  payment  of  costs  in  case  he  fails  in  tho 
action. ^^"  For  any  other  purpose  this  allegation  is  unneces- 
sary, as  he  is  assignee  of  an  express  trust,  has  the  entire  legal 
title,  and  may  sue  in  his  own  name  without  referring  to  his 
character  as  assignee.^'"''     But  an  assignment  by  a  creditor  of  a 

145  Elting  V.  Vanderlyn,  4  Johas.  237. 

146  Lewis  V.  Dai-lhifr.  Kt  How.  (TJ.  S.)  1. 

147  Spier  V.  Kobinson,  0  How.  Pr.  .'^2,5. 

148  1  Daniell.  224;  Sprats  v.  Binkes,  5  Ves.  .^)S7:  De  Oolls  v.  Ward, 
:i  p.  Wnis.  .Sll;  Kaye  v.  P^osbrolve,  8  Sim.  28;  Dyson  v.  Hornby,  7 
I»e  G.,  M  &  G.  1. 

149  Collet  V.  \yooIaston,  3  Bro.  C.  C.  228;  Lloyd  v.  Lander,  5 
Mad.  282;  Sells  v.  Hubboll.  2  .Johns.  Ch.  394;  Springer  v.  Vandei-- 
pool,  4  Edw.  Ch.  ,302:  Wakeman  v.  Grover,  4  Pai,2:e  Cli.  23;  Dias 
V.  Bourhaud,  10  id.  44.");  Osden  v.  Prentice,  33  Barb.  KJl ;  Langdon 
V.  Thompson,  25  Minn.  .W9. 

!•'•"  Murray  v.  Hendrifkson,  0  Abb.  Pr.  96;  1  Bosw.  (".'.r^ 
111  Bntterficld  v.  Macoiuljor.  22  How.  Pr.  1,^)0;  Langdon  v.  Thomp- 
son. 2.".  Minn.   .")(i9:  and   see  Dambnian   v.   White,  48  Cal.  439.    In 
Indiana,  a  complaint  in  an  action  by  a  party  claiming  as  assignee. 


2S5  ASSIGXEES    AND    DEVISEES.  §  oG3 

portion  of  a  debt  does  not  make  the  assignee  joint  owner  of  the 
whole,  and  he  is  not  a  necessary  party  in  a  suit  for  its  re- 
covery.^^^ 

I  362.  Assi^ee  in  bankruptcy.  Proceedings  in  bankruptcy 
do  not  affect  the  previously  acquired  right  of  an  assignee  of  a 
chose  in  action  to  sue  in  the  bankrupt's  name.^^^  In  Con- 
necticut, the  Insolvent  Act  of  1853  provides  that  all  the  prop- 
erty of  the  debtor  shall  be  vested  in  the  trustee,  and  that  the 
trustee  may  sue  in  his  own  name  on  all  choses  in  action.^^'* 

In  an  action  brought  by  an  assignee  in  bankruptcy,  as  the 
title  of  the  plaintiff  does  not  depend  upon  the  voluntary  acts 
of  the  parties,  a  general  allegation  of  assignment  is  not  suffi- 
cient. The  plaintiff  must  set  out  the  facts  in  connection  with 
his  appointment.  Such  facts  must  be  alleged  in  a  manner  suf- 
ficient to  show  that  an  appointment  has  been  made,  and  so  as 
to  be  triable. ^''^  An  allegation  that  the  plaintiff  was  duly 
appointed  on  a  certain  day  is  insufhcient.^^^  In  an  action 
brought  by  a  receiver  of  a  bank,  a  complaint  which  showed  such 
fact,  and  that  the  appointment  was  made  by  the  Supreme  Court, 
by  an  order  made  upon  a  certain  day,  upon  filing  security,  and 
that  such  security  had  been  filed  was  held  sufficient. ^^^     In 

which  does  not  allege  that  the  assignment  has  been  diily  rocorded, 
and  does  not  contain  a  copy  thereof,  is  insufficient  on  demurrer. 
Iios9  v.  Boswell,  60  Ind.  23.'>:  State  v.  Krugg,  82  id.  58. 

iM  i.eese  v.  Sherwood,  21  Cal.  152. 

153  Hayes  v.  Pike.  17  N.  H.  564. 

iM  Hart  V.  Stone,  30  Conn.  94. 

iM  Wliite  v.  Low.  7  Barb.  206.  The  fact  of  assignment  must  be 
alleged,  otherwise  the  complaint  will  be  insufficient.  King  v.  Fel- 
ton,  63  Cal.  66.  The  plaintiff's  appointment  is  sufficiently  alleged 
by  an  averment  that  he  was  appointed  by  an  oi-dcr  of  tlie  proper 
court  duly  given  and  made,  and  it  need  not  be  alleged  that  notice 
to  creditors  was  given  before  the  appointment,  or  that  they  failed 
to  act,  or  that  the  plaintiff  was  competent  to  bo  appointed  assignee. 
Hull  v.  Houghton,  6r>  Cal.  422.  In  a  suit  i)ro8ecutod  or  defended 
by  the  assignee  under  the  Californiii  Insolvent  Act,  a  certified 
co|iy  of  the  assignment  made  to  liim  is  <'onclusive  evidence  of  his 
autliority  to  sue,  or  defend.  Cal.  Insftlvent  Act  (ISU.'i),  §  22;  and 
see  Fitzgerald  v.  Xeustndt.  01  Cal.  (MMt,  as  to  tiie  i)0wer  of  the 
legislature  to  make  such  rule  of  evidence. 

ir-.i  Oillct  V.  Faircliild,  4  Den.  SO;  White  v.  Joy,  3  Kern.  83;  Bangs 
V.  Mcintosh,  23  Barb.  501. 

1(57  Stewart  v.  Beebe,  28  Barb.  34. 


§:iG3 


roiiMs  oi-  ( (».\iri.AiNTS.  286 


Ohio  a  similar  averment  was  held  good  on  demurrer,  although 
it  could  be  taken  advantage  of  on  motion.^^*^  It  is  irregular, 
however,  to  allege  that  the  demand  is  tlie  property  of  the  as- 
si"-nor,  or  that  the  defendant  is  indebted  thereon  to  the  as- 
signor. ^°* 

S  363.  Who  may  assign.  One  partner  of  a  firm,  sole  man- 
ager, his  co})artners  being  absent  at  a  great  distance,  may  assign 
the  lirm  property,  in  trust,  for  the  benefit  of  creditors,  if  neces- 
sary for  their  protection.^^ 

IBS  Sohrock  v.  City  of  Cleveland,  29  Ohio  St.  499. 

1P9  Palmer  v.  Smedley,  28  Barb.  4G8;  S.  C,  6  Abb.  Pr.  205;  com- 
pare Myers  v.  Machado,  id.  198;  S.  C,  14  How.  Pr.  149. 

160  Fox-bes  V.  Scannell,  13  Ciil.  Si2;  and  see  Adee  v.  Cornell,  93 
N.  Y.  572;  Farwell  v.  Webster,  71  Wis.  485;  Holland  v.  Drake,  29 
Ohio  St.  441. 


CHAPTEE  II. 

JOINT  TENANTS   AND  TENANTS  IN   COMMON". 

f  364.  By  joint  tenants  and  tenants  in  common. 
Form  No.  74. 
[Title.] 
The  plaintiffs  complain  and  allege: 

I.  That  the  property  hereinafter  mentioned  and  described 
is  owned  in  common  by  the  plaintiffs. 

II.  [State  cause  of  action.] 

[Demand  of  Judgment.] 

S  365.  Who  are  tenants  in  common  or  joint  tenants.  The 
rule  which  prevails  in  a  majority  of  the  states  of  the  Union  is, 
that  when  two  or  more  persons  succeed  by  inheritance  to  the 
same  land,  or  it  is  conveyed  to  them  by  the  same  instrument, 
without  express  direction  to  the  contrary,  their  interests  are 
those  of  tenants  in  common,  and  not  of  joint  tenants.^  The 
joint  proprietors  of  water  ditches  in  the  mining  districts,  in 
the  absence  of  any  special  facts  constituting  them  something 
else,  are  tenants  in  common  of  real  estate,  and  their  rights  in 
the  ditches  and  sales  of  water  are  governed  by  the  law  of 
tenancy  in  common.^ 

<S  366.  Legal  actions  by  owners  in  common  or  joint  owners  of 
land.  The  provisions  of  the  Codes  of  the  various  states  provide 
that  "  all  persons  having  an  interest  in  the  subject  of  the 
action,  and  in  obtaining  the  relief  demanded,  may  be  joined 
as  plaintiffs,  excei)t  as  otherwise  provided,"^  and  "  of  the  parties 
to  the  action,  those  who  are  united  in  interest  must  1)e  joined 
a.s  plaintiffs  or  defendants;  but  if  the  consent  of  any  one  wlio 
should  have  been  joined  as  plaintiff  can  not  be  ol)tained,  he 
may  be  made  a  df'fenflaiit.  the  reason  thereof  being  stated  in 

1  ]  Waslib.  on  Real  Prop.  409,  and  note. 

2  Bradley  v.  Ilarkness,  20  Cal.  00;  MrConnell  t.  Denvor.  .3.')  Id. 
3C9;  (m  Am.  Dor.  107;  Hayes  v.  Fine.  91  Cal.  .'501:  Meagher  v. 
Ilardenbroftk.   11    Mont.   .'{8.';   Fre«>ni.   on    rotenanoy,    §   88. 

3  See  Cal.  Code  Civ.  Pro.,  g§  378,  381;  §  125,  ante. 


§  ;U)7  FORMS    OF   COMPLAINTS.  288 

iho  fomplaiut.'"^  lii  the  interpretation  of  these  provisions  in 
rofeixMut^  to  actions  brought  by  tenants  in  common  or  joint 
tenants  of  hind,  it  has  been  held  that  in  an  action  to  recover 
an  entire  rent  from  the  lessee,  or  from  one  to  whom  it  has  been 
paid,  all  the  tenants  in  common  may  join.^  This,  however, 
is  unnecessary,  as  one  may  maintain  an  action  to  recover  his 
moiety  of  the  rent,  although  it  may  be  entire.*  To  recover 
for  torts  done  to  the  land,  such  as  nuisances  and  trespasses,  the 
rule  is  the  sajne  as  it  was  at  the  common  law,  and  all  the  ten- 
ants in  common  must  join.'^  And  the  same  rule  applies  in 
actions  to  recover  for  fraud  in  the  sale  of  land  to  several  ten- 
ants in  common.^ 

§  367.  Actions  to  recover  possession  of  land.  In  actions  to 
recover  the  possession  of  land,  all  the  owners  in  common  may 
join.®  Or  each  may  sue  to  recover  his  undivided  share. ^"^ 
Whether,  in  such  action,  one  tenant  in  common  can  recover 
more  than  his  undivided  share,  where  the  entire  land  is  held 
adversely  by  the  defendant,  is  a  question  on  which  the  authori- 

4  See  Oal.  Code  Civ.  Pro.,  §  382;  id.  389,  amendment  of  1897;  §  158, 
a>tte. 

5  Marsliall  v.  Moseley.  21  N.  Y.  280. 

eCruger  v.  McHenry,  41  N.  Y.  219;  Jones  v.  Felch,  3  Bosw.  63; 
Porter  v.  Bleiler,  17  Barb.  149. 

7De  Puy  V.  Strong,  37  N.  Y.  372;  Hill  v.  Gibbs.  5  Hill,  56; 
Parke  v.  Kilham,  8  Cal.  77;  68  Am.  Dec.  310;  Wausau  Boom  Co.  v. 
Plumer.  49  Wis.  112;  Schlffer  v.  Eau  Claire,  51  id.  385;  Seymour 
V.  Carpenter,  id.  413;  Van  Deusen  v.  Y'oung,  29  Barb.  9;  Samuels 
V.  Blanchard,  25  Wis.  329;  Alford  v.  Dewin,  1  Nev.  207;  May  v. 
Slade,  24  Tex.  205;  White  v.  Brooks,  43  X.  H.  402;  Bullock  v. 
Hayward,  10  Allen,  460;  Mobley  v.  Bruner,  59  Penn.  St.  481;  98  Am. 
Dec.  360.  The  several  owners  of  the  waters  of  a  stream  may 
unite  as  plaintiffs  in  an  action  to  restrain  a  diversion  of  the  waters 
by  a  third  person,  or  to  abate  a  nuisance  therein,  but  they  can  not 
for  that  reason  unite  in  an  action  for  damages.  And  if  they  join 
as  plaintiffs  in  an  action  for  damages,  and  for  an  injunction  to 
restrain  the  defendants  from  the  further  diversion  of  the  waters, 
the  complaint  is  subject  to  demurrer,  both  for  a  misjoinder  of 
parties  plaintiff  and  for  a  misjoinder  of  causes  of  action.  Fore- 
man V.  Boyle,  88  Cal.  290. 

« Lawrence  v.  Montgomery,  37  Cal.  183;  Foster  v.  Elliott.'  33 
Iowa.  216. 

9  Hasbrouck  v.  Bunce.  62  N.  Y.  475;  Cook  v.  Wardens  of  St.  Paul's 
Ch..  5  Hun.  293:  Cruger  v.  McLaury,  41  N.  Y.  219;  Fisher  v. 
Hall.   id.  416. 

10  Moreiiliaut  v.  Wilson,  .52  Cal.  262;  Goller  v.  Fett,  30  id.  431; 
Covlllaud  V.  Tanner,  7  id.  38. 


289  JOINT  TEXAXTS  AXD  TENANTS  IN  COMMON.  §  367 

ties  materially  differ.  In  some  of  the  states  the  recovery  of 
the  tenant  in  common  is  limited  to  the  amount  to  which  he 
can  show  title  in  himself;  that  is,  to  his  own  share.-^^  On  the 
other  hand,  the  rule  is  equally  well  settled  in  other  of  the  states, 
that  one  tenant  in  common  can  recover  possession  of  the  entire 
premises  as  against  a  mere  trespasser  without  joining  his  co- 
tenants,  either  as  plaintiffs  or  defendants.^^  The  reasons  of  this 
rule  are  that  one  tenant  in  common  has  a  right  of  enjoyment 
of  and  possession  to  the  whole  of  the  common  property,  and 
although  he  can  not  possess  in  severalty  before  partition,  still 
each  and  every  one  of  them  has  a  right  to  enter  upon  and  oc- 
cupy the  whole  of  the  common  lands,  and  every  part  thereof.^^ 
In  most  of  the  states,  although  their  Codes  permit  actions  to 
lie  brought  either  by  all  the  tenants  in  common  for  the  whole 
of  the  common  property,  or  by  one  for  his  undivided  share, 
they  do  not  permit  actions  to  be  brought  by  more  than  one  and 
less  than  all.^*  In  California,  however,  a  special  provision  of 
the  Code  permits  any  number  of  joint  owners,  or  owners  in 
common,  either  to  commence  or  to  defend  such  actions. ^^  And 
tlie  same  is  so  in  Missouri  and  Nevada.^"  The  Code  of  Cali- 
fornia also  provides  that  "  any  two  or  more  persons  claiming 

11  Mobley  v.  Bniner,  .59  Penn.  St.  481;  98  Am.  Dec.  Sm;  Minke  v. 
McNamee.  30  Md.  294;  Gray  v.  Givens,  2G  Mo.  201;  Dewey  v.  Brown, 
2  rifk.  387. 

12  Treat  v.  R^ellly.  35  Cal.  129;  Hart  v.  Robertson,  21  id.  346; 
Winthrop  v.  Grimes,  Wright.  330;  Dolph  v.  Barney,  o  Ores.  191; 
French  v.  Edwards,  ,5  Sawy.  2GG;  Le  Franc  v.  Richmond,  id.  601; 
Sharon  v.  Davidson.  4  Xev.  416;  Hibbard  v.  Foster,  24  Vt.  542; 
Robinson  v.  Roberts,  31  Conn.  145;  Collier  v.  Corbett,  15  Cal.  183; 
Stark  V.  Barrett,  15  id.  361. 

isTevis  V.  Ilicks,  38  Cal.  234;  Carpcntier  v.  Webster.  27  id.  .545. 

14  Fisher  v.  Hall,  41  N.  Y.  416;  Ilubbell  v.  Lerch,  58  id.  2.37;  Has- 
broiK'k  v.  Bnnce,  62  id.  475. 

15  Cal.  Code  Civ.  Pro..  §  384;  Goller  v.  Fett,  30  Cal.  481;  Tonchard 
V.  Keyes,  21  id.  202;  Reynolds  v.  Ilosmer,  45  id.  616.  T'nder  this 
provision  of  the  Cwle  one  tenant  in  common  can  recover  posses- 
sion of  the  entire  premises,  as  apainst  a  mere  trespasser,  without 
.ioinlnjr  his  cotenants  as  plaintiffs.  :Moultnn  v.  McDormott,  80  Cnl. 
629;  Hopkins  v.  Noyes.  4  Mont.  5.50.  He  may,  without  joining  the 
other  cofeiiaiits,  maintain  an  action  of  unlawful  detainer.  Lee 
Cliuck  V.  Quam  Wo  ChotiK,  91  Cal.  .593;  and  one  tenant  in  common 
of  water  may  sue  alone  to  pnitect  it  or  recover  it  from  a  Irrsii.nsser. 
T>ytle  Creek  Water  Co.  v.  Perdew,  65  Cal.  447;  ITimes  v.  .Johnson, 
61  id.  2.59;  Sjianish  Fork  City  v.  Hopper.  7  T'tah,  2.35. 

10  Wag.  Stat.  .5.58,  §  3;  Comp.  Laws  Nev.  (1873),  §  1077. 

Vol.  1—37 


^  ;5(JS  roK.Ms   (.1-   cO.Mri.AIXTS.  390 

any  estate  or  interest,  in  lauds,  under  a  common  source  of  title, 
whether  holding  as  tenants  in  coniinon,  joint  tenants,  coparce- 
ners, or  in  severalty,  may  'iinite  in  an  action  against  any  per- 
son claiming  an  adverse  estate  or  interest  therein,  Tor  the  purpose 
of  determining  such  adverse  claim,  or  of  establishing  such 
common  source  of  title,  or  of  declaring  the  same  to  be  held  in 
trust,  or  of  removing  a  cloud  upon  the  same."^'^ 

§  368.  Action  by  tenant  in  common  against  cotenant.  In  an  ac- 
tion by  a  tenant  in  common  against  his  cotenant,  in  the  sole 
possession  of  the  premises,  to  recover  a  share  of  the  profits  of 
the  estate,  a  complaint  which  avers  a  tenancy  in  common  be- 
tween the  pajfties;  the  sole  and  exclusive  possession  of  the 
premises  by  the  defendant;  the  receipt  by  him  of  the  rents, 
issues,  and  profits  thereof;  a  demand  by  the  plaintiff  of  an 
account  of  the  same,  and  the  payment  of  his  share;  the  de- 
fendant's refusal;  and  that  the  rents,  issues,  and  profits  amount 
to  eighty-four  thousand  dollars,  is  insufficient  to  support  the 
action.  The  action  is  a  common-law  action  of  account;  and, 
viewed  in  this  light,  the  complaint  should  aver  that  the  defend- 
ant occupied  the  premises  upon  an  agreement  with  the  plaintiff, 
as  receiver  or  bailee  of  his  share  of  the  rents  and  profits.  It 
is  essential  to  a  recovery  that  it  be  alleged.^*  A  tenant  in  com- 
mon may  maintain  a  bill  in  ecpity  against  his  cotenant  who'  has 
exclusively  occupied  a  salt  well  and  works,  and  a  coal  mine,  the 
common  property,  for  an  account  of  rents  and  profits.  The 
defendant,  in  such  case,  is  liable  for  "  receiving  more  than 
comes  to  his  just  share  or  proportion,"  under  Stat.  4  Anne, 
chapter  16,  section  27.^^  A  tenant  in  common  of  lands,  em- 
ployed as  agent  by  common  agreement  between  himself  and  co- 
tenant,  to  take  charge  of  the  land,  make  sales  thereof  at  certain 
prices,  receiving  a  commission  of  five  per  cent,  on  sales,  may  sue 
his  cotenant  for  services  in  respect  to  the  land  outside  of  selling 
it.^*^  Several  persons  owning  a  tract  of  mining  claims,  as  ten- 
ants in  common,  acting  under  a  company  name,  can  not,  in  the 
name  of  the  company,  take  or  hold  the  interest  of  any  one  or 

17  Cal.  Code  Civ.  Pro.,  §  381. 

i«  Pico  V.  Coliimbet,  12  Cal.  414;  78  Am.  Dec.  5.50;  soo  Howard  v. 
Throfl^niorton,  .59  Cal.  79;  IMcCord  v.  Mining  Co.,  G4  id.  13.5,  14G; 
Mnrx  v.  Ooodnough,  16  Orefr.  2G,  82. 

n*  Kfirlcy  v.  Friend,  10  Graft.  21. 

20  Thompson  v.  Salmon,  18  Cal.  032. 


291  JOIXT  TEXAJsTS  AXD  TENANTS  IN  COMMON.  §  368 

more  by  forfeit ure,^^  If  two  ai'e  tenants  in  common  of  personal 
property,  and  the  sheriff,  in  an  action  against  one  of  them,  at- 
taches his  interest  in  the  common  property,  he  may  take  all 
the  property  into  his  possession  without  being  guilty  of  a  con- 
version of  the  other  tenant's  share.^ 

21  Wiseman  v.  McNulty,  25  Cal.  230;  Dutch  Flat  Co.  v.  Mooney, 
12  id.  534. 

22  Veacli  V.  Adams,  51  Cal.  609.  A  tenant  in  common  in  a  chattel 
can  not  maintain  an  action  against  his  cotenant  for  a  recovei-y  of 
the  specific  chattel  or  for  his  undivided  interest  therein.  Balch  v. 
Jones,  61  Cal.  234;  compare  Hewlet  v.  Owens,  50  id.  474;  Hill  v. 
Seager,  3  Utah,  379,  380. 


CHAPTER  III. 

COKPOKATIONS. 

S  369.  By  a  foreign  corporation. 

Form  No.  75. 
[Title.] 

1 

The  Company,   Plaintiff, 

against 
John  Doe,  Defendant. 


The  plaintiff  complains,  and  alleges: 

I.  That  it  is  a  corporation  organized  and  existing  under  the 
laws  of  the  state  of  Nevada,  for  the  purpose  of  [here  state  the 
purpose],  and  is  doing  business  as  such  in  its  said  corporate 
name. 

II.  [State  the  cause  of  action.] 

[Demand  of  Judgment.] 

§  370.  Existence  of  foreign  and  domestic  corporations.  Al- 
though a  corporate  body  may  carry  on  business  beyond  the 
territorial  limits  of  the  state  which  created  it,  it  has  no  cor- 
porate existence  beyond  those  limits,^  and  a  corporation  which 
owes  its  existence  to  the  laws  of  several  states  must  be  considered 
as  a  domestic  corporation  in  each  of  such  states.^  In  the  latter 
case  each  charter  creates  a  legal  entity  tO'  be  recognized  within 
its  own  state. ^  In  the  case  of  a  foreign  corporation  its  exist- 
ence is  a  question  of  fact,  which  it  has  been  held  is  for  the  jury 
to  determine.^  The  right  of  a  domestic  corporation  to  act  as 
such  can  not  be  questioned  collaterally.^     And.  where  defendants 

1  Day  V.  Newark  India  Rubber  Co.,  1  P.latchf.  028;  Bank  of  Au- 
gusta V.  Earle,  13  Pet.  588;  Ohio  «&  M.  R.  R.  Co.  v.  Wheeler,  1 
Black,  28G;  and  see  Colorado  Iron  Works  v.  Mining  Co.,  15  Col. 
409;  22  Am.  St.  Rep.  4.3.3;  Wilson  v.  Fire  Alarm  Co.,  149  Mass.  24. 

2  State  V.  Northern  Central  Ry.  Co.,  18  Md.  193;  Sprague  v.  Hart- 
ford, etc.,  R.  R.  Co.,  V)  R.  I.  233. 

3  Ohio  &  Miss.  R.  R.  Co.  v.  Wheeler,  1  Black,  286. 
4Lindani  r.  Delaware  Ins.  Co.,  13  Ark.  4(il. 

c  Dean  v.  Davis,  51  Cal.  407. 


293  CORPORATIOXS.  §  371 

are  alleged  to  be  a  corporation  doing  business  witliin  the  state, 
courts  will  not  presume  as  a  matter  of  la.w  that  it  is  a  foreign 
corporation.^  The  national  banks  organized  and  doing  business 
under  the  acts  of  Congress  are  to  be  regarded  as  foreign  cor- 
porations, within  the  provisions  of  the  Code  of  Procedure  au- 
thorizing actions  to  be  brought  and  attachments  to  be  issued 
against  corjjorations/ 

§  371.  Rights  and  liabilities  of  foreign  corporations.  When  a 
foreign  corporation  comes  by  its  officers  within  the  Jurisdic- 
tion of  another  state  to  engage  in  business,  it  becomes  amenable 
to  the  laws  of  the  latter  state,  and  can  not  escape  the  conse- 
quences of  its  illegal  acts  by  setting  up  its  existence  under  a 
foreign  government.^  Such  corporations  are  deemed  "per- 
sons," within  the  meaning  of  the  statute  relating  to  taxation, 
unless  a  difl'erent  intent  is  indicated  in  the  statute.^ 

In  Xew  York  one  foreign  corporation  may  sue  another  in  the 
courts  of  that  state,  upon  a  cause  of  action  arising  in  it.^^  But 
a  complaint  against  a  foreign  corporation  must  either  allege 
that  the  plaintiffs  are  residents  of  that  state,  or  that  the  cause 
of  action  arose,  or  the  subject  of  the  action  is  situated,  within 
the  state.  If  such  allegations  are  omitted,  the  complaint  may 
be  dismissed  on  motion.^^  A  corporation  created  by  the  laws  of 
one  state,  and  composed  entirely  of  citizens  of  that  state,  is 
not  entitled  to  all  the  privileges  and  immunities  of  citizens  of 
another  state  in  which  it  may  be  engaged  in  business.^^  Nor  is 
it  entitled  to  privileges  which  by  the  statutes  of  the  latter  are 
confined  to  corporations  created  by  the  laws  of  that  state.'^ 

"Afome  V.  AmonVnn  Mineral  Co.,  11  How.  Pr.  24.  Whon  the 
r-ai)tion  of  the  fomplaint  irivcs  the  title  of  the  corporation  with  the 
achlition,  "a  corporation  under  the  laws  of  the  state  of  Iowa," 
and  the  corporation  was  rcferrod  to  in  the  allegations  by  the  cor- 
porate name,  the  averment  of  a  roi-porate  capacity  is  sufficient. 
Saunders  v.  Sioux  City  Nursery.  0  TTfah,  4.'^1. 

TBowen  v.  P'irst  Nat.  Bank  of  Medina,  .'^4  ITow.  Pr.  4n.S;  Cooke 
V.  S^ate  Nat.  Bank  of  Boston.  .•?  Ahl».  Pr.  (N.  S.)  V;P;U. 

«  Austin  v.  New  York  &  Erio  R.  B.  Co..  1  Dutch.  :iS1 ;  People  v. 
C(.n1.  B.  B.  Co.  of  N.  .T.,  48  Barb.  478;  AA'aireii  Mf<x.  Co.  v.  Aetna 
Ins.  Co..  2  Paine,  .'01. 

n  T'.rlti.sh  Conini.  Life  Ins.  Co.  v.  Com'rs  of  Ta«os,  28  How.  Pr.  41. 

10  Bank  of  Commerce  v.  Bntland  &  Wasli.  R.  R,  Co..  10  How. 
Pr.  1. 

11  House  v.  Coojier,  10  TIow.  Pr.  2J)2. 

12  Bank  of  Aufrusta  v.   Earle,  IS  Pet.  ."^19. 

13  dryers  v.  Manhattan  Bank.  20  Olilo.  2S.3. 


g  37'^  I'Oll-MS    OF    (.OMl'LAlJsTS.  294 

Nor  does  iJie  provision  of  the  United  States  Constitution,  guar- 
antt^'ing  to  citizens  of  each  state  all  the  privileges  and  mi- 
munitios  of  citizens  in  tlie  several  states,  prevent  a  state  from 
regulating  or  restricting  the  business  of  a  corporation  created 
by  the  laws  of  another  state,  and  imposing  terms  on  its  right 
to  carry  on  business  within  its  boundaries.^"*  In  a  recent  case 
in  the  Court  of  Appeals  of  New  York,  the  nature  and  extent  of 
state  jurisdiction,  and  the  duty  of  the  comity  which  one  state 
owes  to  foreign  states,  were  considered  and  explained.^''  A 
complaint  in  an  action  which  states  that  the  defendant  is  a 
corporation,  and  fails  to  state  whether  it  is  a  domestic  or  foreign 
corporation,  and  if  the  latter  under  the  laws  of  what  sovereignty 
incorporated,  is  defective  as  not  complying  with  the  require- 
ments of  section  1775,  New  York  Code  of  Civil  Procedure. 
Such  defect  is  not,  however,  a  ground  of  demurrer,  but  the  sub- 
ject of  a  motion  to  compel  its  correction.^*^  The  allegation  that 
the  defendant  is  a  corporation  is  no  part  of  the  cause  of  action, 
but  simply  relates  to  the  character  or  capacity  of  the  defendant.^' 

§  372.  By  or  against  a  domestic  corporation. 

Form  No.  76. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  it  is  a  corporation  organized  and  existing  under  the 
laws  of  this  state,  and  as  such  doing  business  in  its  corporate 
name  of  [insert  name  of  corporation],  [or  that  the  defendant 
is  a  corporation  created  by  and  existing  under  the  laws  of  this 
state] . 

IT.   [St.ate  cause  of  action,  etc.] 

[Demand  of  Judgment.] 

14  Paul  V.  Virginia,  9  Wall.  108;  Ducat  v.  Chicago.  10  id.  410; 
Livenwol  Ins.  Co.  v.  Massachusetts,  id.  .567;  Ins.  Co.  v.  Morse,  20 
id.  4.")7;  Louisiana  v.  Lathrop,  10  La.  Ann.  398;  Doyle  v.  Continental 
Ins.  Co.,  94  U.  S.  .540;  Lamb  v.  Lamb,  6  Biss.  420;  Hoffman  v. 
Banks.  41  Ind.  1;  Rising  Sun  Ins.  Co.  v.  Slaughter,  20  id.  520; 
Wash.  Co.  M.  Ins.  Co.  v.  Hasting,  84  Mass.  398;  Williams  v. 
Cheney.  74  id.  20G;  Ins.  Co.  v.  N.  O.,  1  Woods,  89;  Ex  parte 
Robinson.  12  Nev.  263;  28  Am.  Rep.  794;  Ex  parte  Cohn,  13  Nev.  424. 

15  Merrick  t.  Van  Santvoord,  34  N.  Y.  208;  see,  also.  Common- 
wealth V.  Railroad  Co..  129  Penn.  St.  463;  15  Am.  St.  Rep.  724; 
Cowell  V.  Springs  Co.,  100  IT.  S.  55;  Cooper  Mfg.  Co.  v.  Ferguson, 
113  id.  727. 

i«  Harmon  v.  Vanderbilt  Hotel  Co..  79  Hun,  392. 
17  Fox  T.  Erie  Presr-rving  Co.,  93  N.  Y.  54;  and  see  Phoenix  Bank 
V.  Donnell.  40  id.  410. 


295  coRPOKATioxs.  §  373 

§  373.  Allegaticn  of  corporate  existence.  In  the  common- 
'-  law  system  of  pleading,  in  an  action  brought  by  a  corporation, 
the  rule  was  established  by  the  weight  of  authority,  that  the 
declaration  need  not  contain  an  allegation  of  corporate  exist- 
ence, although  the  plaintiff  is  not  such  a  corporation  that  its 
existence  will  be  judicially  taken  cognizance  of.^^  Under  such 
system  the  defendant  might  join  issue  on  the  fact  of  the  plain- 
tiff's corporate  capacity,  so  as  to  compel  it  to  give  evidence 
thereof.  How  such  issue  was  joined  differed  in  the  several 
states.  In  England,  and  in  many  of  the  states,  pleading  the 
general  issue  was  sufficient. ^^  On  the  contrar}^  other  states  es- 
tablished the  rule  that  by  pleading  the.  general  issue,  the  plain- 
tiff'^s  corporate  capacity  was  admitted,  and  if  the  defendant 
wished  to  raise  an  issue  to  such  fact  it  must  be  by  a  plea  in 
abatement  or  a  plea  in  bar.^ 

In  those  states  which  have  adopted  Codes  of  Procedure,  the 
question  whether  or  not  a  corporation  m.ust  allege  its  corporate 
existence,  in  an  action  brought  by  it,  has  been  answered  in  so 
many  ways  that  it  is  difficult,  if  not  impossible,  to  reconcile 
the  decisions.  Some  of  the  states  have  made  special  enactments 
which  cover  this  question.     Thus  the  Code  of  Iowa  provides 

18  Ang.  &  Ames  on  Corp.,  §  0.32,  n.  2;  Harris  v.  Muskingum 
Mfj?.  Co.,  4  Blackf.  2G7;  29  Am.  Dec.  372:  Benninstou  Iron  Co.  v. 
Rutherford.  18  X.  J.  L.  107;  3.")  Am.  Dec.  52.S;  Rees  v.  Conocoche- 
ague  Bank.  .5  Rand.  326;  Richardson  v.  St.  Joseph  Iron  Co.,  5 
Blackf.  146;  83  Am.  Dec.  460;  Zion  Cluu-ch  v.  St.  Peter's  Church, 
5  Watts  &  S.  215;  Union  Mutual  Ins.  Co.  v.  Osgood,  1  Duer,  707; 
Kennedy  v.  Cotton,  28  Barb.  .50;  I.a  Fayette  Ins.  Co.  v.  Rogers,  30 
id.  491;  Phoenix  Bank  v.  Donnoll,  41  id.  .571;  Fiye  v.  Bank  of 
Illinois,  10  111.  3.32;  Ileasten  v.  Cincinnati,  etc.,  R.  R.  Co.,  16  Ind. 
275;  79  Am.  Dec.  430;  Gorman  Kef.  Ch.  v.  Von  Pupchelstein.  27 
N.  J.  Eq.  30;  Gillett  v.  American,  etc.,  "Ware  Co..  29  Graft.  .56.'; 
Odd  Follows'  Bid.  Ass'n  v.  Hogan,  28  Ark.  261;  Wilson  v.  Sprague 
M.  M.  Co..  55  Ga.  672;  Adams  Express  Co.  v.  Hill.  43  Ind.  1.57. 

10  Rees  V.  Conriforheaguc  B.-ink,  5  Rand.  326;  16  Am.  Dec.  755; 
Ilargrave  v.  Bank  of  Illinois,  Breoso,  122;  .Tones  v.  Bank  of 
Illinois,  id.  124;  Lewis  v.  Bank  of  Ky.,  12  Ohio,  132;  40  Am.  Dec. 
469;  Ilenriques  v.  Dutr-li  West  India  Co.,  2  Ld.  Raym.  1.535;  Jackson 
V.  Plunibe,  8  Johns.  378;  Dutchess  Mfg.  Co.  v.  Davis,  14  id.  245; 
Rank  of  Auburn  v.  Weed,  19  id.  .303;  McDonald  v.  Noilson,  2  Cow. 
139:  14  .Vm.  Dec.  431. 

zn  Society,  etc.  v.  Pawlct.  4  Pet.  480;  Zion  Church  v.  St  Peter's 
Church,  5  AA'atts  &  S.  215;  Cliristian  Society  v.  Macomber,  3  Mrfo. 
235;  Scliool  District  v.  Bhiisdcll.  6  N.  II.  197;  T.angdon  v.  Potter, 
11  Mass.  313;  Boston  Tj'pe  Foundry  v.  Spooner,  5  Vt.  93. 


^  :573  l••^>lv.\l^S   Ol'   (H).\11'I,A1NTS.  296 

that  "a  plaiutitV,  suing  iu;  a  corporation,  partnership,  executor, 
guardian,  or  in  any  other  way  implying  corporate,  partnership, 
representative,  or  other  thaia  iiuUvidual  capacity,  need  not  state 
the  facts  constituting  such  capacity  or  rehation,  but  may  aver 
generally,  or  as  a  legal  conclusion,  such  capacity  or  relation; 
and  when  defendant  is  held  in  such  capacity  or  relation,  a 
plaintitf  may  aver  such  capacity  or  relation  in  the  same  general 
way.""*  In  Minnesota  it  is  provided,  that  "  in  actions  by  or 
against  corporations  created  by  or  under  the  laws  of  this  state, 
it  is  sutTicient  to  refer  in  the  complaint  or  answer  to  the  act  of 
incorporation,  or  the  proceeding  by  which  such  corporation  was 
created."  In  that  state  it  has  been  held  that  where  the  statute 
creating  the  corporation  requires  certain  acts  to  be  done  before 
it  can  be  considered  in  esse,  the  complaint  must  show  that  such 
acts  have  been  done.'^  Jn  California,  the  allegation  that  the 
plaintiff  is  a  corporation,  organized  and  existing  under  the  laws 
of  the  state,  has  been  held,  on  demurrer,  a  sufficient  allegation 
of  the  plaintiff's  corporate  capacity.^^  And  the  same  allegation 
has  been  held  sufficient  in  Iowa  under  the  statute;-^  and  in 
Minnesota.^''  In  Kansas  the  common-law  rule  seems  to  have 
been  adopted,  and  no  allegation  that  the  plaintiff  is  a  corpora- 
tion is  essential.^^  And  the  same  is  true  in  Indiana.^  In  Wis- 
consin it  is  provided  by  statute,  that  the  plaintiff  need  not 
prove  its  corporate  existence,  unless  it  has  been  specially  denied, 
and  that  the  allegation  thereof  may  be  made  by  reference  to  the 
title  of  the  act  of  incorporation.  And  this  rule  applies  to  for- 
eign as  well  as  to  domestic  corporations.^^     In  ^ew  York,  in 

21  Code  (1873),  $  2716;  Code  Pro.,  §  98. 

22  St.  Paul  Division  No.  1  v.  P.rown.  9  INIinn.  1.57. 

23Cal.  Steam  Nav.  Co.  v.  Wright,  0  Cal.  258.  Au  averment  of 
the  existence  of  a  de  facto  cori)oration  is  as  issuable  as  an  averment 
of  tlio  existence  of  a  corporation  de  jure  Martin  v.  Deetz,  102 
Cal.  .').->;  41  Am.   St.  Rep.  1.51. 

24  Root  V.  Illinois  Cent.  R.  R.  Co.,  29  Iowa,  102;  Savings  Bank 
V.  Horn,  41  id.  55. 

25  Broome  v.  Galena,  etc..  Packet  Co.,  9  Minn.  2:^9;  Dodjre  v. 
Minnesota  Plastic,  etc.,  Co.,  14  id.  49. 

2«Ryan  v.  Farmer.s'  Bank,  5  Kan.  058;  Campbell  v.  Bl.nnko,  13 
Id.  02. 

27  0'Donald  v.  p:vansville,  etc.,   R.  R.  Co.,  14  Tad.  2.";0. 

a'»R.  S.,  chap.  148,  §§  3.  11;  I'""armers'  Loan,  etc.,  Co.  v.  Fisher,  17 
Wis.  114;  Connecticut  Mut.  Life  Ins.  Co.  v.  Cross,  IS  id.  10!).  In 
this  latter  case  it  was  held  that  in  an  action  by  a  foreijrn  insurance 
company  to  recover  money  loaned,   it  is  not  necessarv   to  set  out 


897  coKPOEATioxs.  §  373 

suits  by  a  domestic  corporation,  it  is  not  necessary  to  allege 
the  plaintiffs  incorporation,  because  by  the  provisions  of  the 
Eevised  Statutes,  which  have  been  held  to  be  in  force  notwith- 
standing the  enactment  of  the  Code  of  Procedure,  proof  of  such 
incorporation  was  not  necessary,  unless  the  defendant  specially 
denied  it.^  In  the  case  of  a  foreign  corporation,  however,  there 
is  no  such  statute  applicable,  and  its  existence  must  be  alleged, 
and  proved  on  the  trial.-"^"  It  is  not  necessary,  however,  to  set 
forth  the  specific  powers  of  the  corporation  to  enter  into  the 
transaction  under  which  the  cause  of  action  arose.^^  But  where 
an  officer  of  a  foreign  corporation  sues  in  his  own  name  on  be- 
half of  his  company,  his  complaint  must  state  facts  showing 
his  authority  to  sue  on  their  behalf.  Merely  alleging  authority 
is  not  enough.22  And  whenever  it  is  necessary  to  aver  the 
existence  of  a  corporation,  it  may  be  done  by  referring  to  the  title 
of  the  act  incorporating  it,  and  the  date  of  its  passage.  The 
substance  thereof  need  not  be  set  forth.^^  Where  the  original 
act  is  referred  to  in  the  complaint,  a  vague  reference  to  other 
general  statutes  affecting  it  does  not  render  the  complaint  de- 
murrable;^-*  but  the  title  of  the  act  must  be  set  forth   with 

In  the  complaint  in  hacc  verba  that  portion  of  the  plaintiff's  diarter 
whicl)  confers  the  power  to  loan  money. 

29  Shoe  &  Leather  Bank  v.  Brown.  9  Abb.  Vv.  218;  Phoenix  Bank 
V.  Donnell,  40  X.  Y.  410;  Fulton  Fire  Ins.  Co.  v.  Baldwin.  87  id. 
048;  Union  Marine  Ins.  Co.  v.  Osgood,  1  Duer,  707;  Canandarqua 
Academy  v.  McKechnie,  19  Hun,  02;  Acome  v.  American  Min.  Co.. 
11  How.  Pr.  24;  Litrlite  v.  Everett  Fire  Ins.  Co.,  5  Bosw.  716; 
La  Fayette  Ins.  Co.  v.  Rof^ers,  30  Barb.  491:  Elizabethport  Mfp.  Co. 
V.  C.'impbcll,  1.3  Abl).  Pr.  80;  Academy  v.  McKechjiie,  90  Cal.  018; 
and  seo.  also.  Cement  Co.  v.  Nobel,  1.5  Fed.  Rei*.  ,502;  Saunders  v. 
Sioux  City  Nursery,  0  Utah,  431. 

•"'' Walerville  Mf}r.  Co.  v.  Bryan,  14  Barb.  182;  Connecticut  Bank 
v.  Smith.  9  Abb.  Pr.  175;  ISIyers  v.  Machado,  14  Ilow.  Pr.  149; 
Loaners'  Bank  v.  Jacoby,  10  Hun,  143:  see  §  370,  mitc. 

•"•1  Reformed  Dutch  Church  v.  Vcedor,  4  Wend.  494;  Struver  v. 
fu-t'ixn  Ins.  Co.,  9  Abb.  Pr.  23;  Perkins  v.  Cliurch,  81  Barb.  84; 
Mnrine.  etc..  Bank  v.  .Tauncoy.  1  id.  480:  compare,  however,  Cam- 
den, etc.,  Co.  v.  Remer,  4  id.  127;  Bard  v.  Chamberlain.  3  Saudf. 
Ch.  31,  where  it  is  said  lliat  the  p<)wer  of  a  foreifrn  conjoiatinn 
to  make  the  contract  wliich  is  sou'^Mit  to  be  enff)rced  must  be  set 
fortli. 

^"  Myers  v.   M.'uli.Tdo,  (;  Abl».   Pr.   19S. 

33Cal.  Code  Civ.  Pro..  §  4.59;  N.  Y.  Code,  S  103;  T'niled  States 
Bank  v.  Ilnskins,  1  ,Tohns.  Cas.  132. 

34  Sun  Mut.  Ins.  Co.  v.  Dwight,  1  Hilt.  50. 

38 


§374 


I'OKMS   01'    COMI'LAINTS.  2\)S 


accuracy.-''"'  In  an  action  by  a  corporation  in  relation  to  its 
nroncrty,  it  is  not  04?sential  to  a  statement  of  a  complete  cause 
o(  artiiui  that  the  e()m[)laint  should  show  that  the  plaiutifl; 
has  complied  with  the  requirements  of  section  2dd  of  the  Cali- 
fornia Civil  Code,  with  respect  to  the  tiling  of  a  copy  of  its 
articles  of  incorporation  in  tiie  olfice  of  the  county  clerk.^" 
Failure  to  comply  with  such  requirements  can  only  be  made 
available  by  specially  pleading  it  in  the  answer  as  matter  of 
abatement  to  the  action.^^  In  an  action  against  a  private  cor- 
poration, it  is  necessary  to  allege  its  corporate  character,  and 
without  this  averment,  the  complaint  does  not  sta.te  facts 
sufficient  to  constitute  a  cause  of  action.^*  An  averment  of 
the  defendant's  corporate  existence  is  held  to  be  necessary  in 
every  count  of  a  complaint  against  a  corporation.^'^  And  in 
an  action  to  enforce  the  forfeiture  of  a  corporate  franchise  on 
account  of  nonuser  and  misuser,  the  complaint  must  specifically 
allege  that  the  defendant  has  a  legal  existence  as  a  corporation.'*'^ 
Where  the  complaint  alleges  that  the  defendant  is  a  corporation 
organized  and  existing  under  the  laws  of  the  state,  and  the  only 
answer  of  the  corporation  is  a  general  denial,  it  can  not  after- 
wards complain  that  there  was  no  affirmative  proof  of  its  cor- 
porate existence.*^ 

§  374.  Collateral  attack  on  corporate  existence.  ^\Tiere  the 
plaintifl*  enters  into  a  contract  with  a  defendant,  by  a  corporate 
name,  and  afterwards  sues  it  as  such  corporation,  the  general 
rule  established  by  the  weight  of  authority  is,  that  the  defend- 
ant is  estopped  to  deny  its  corporate  existence.^^     The  Civil 

35  Union  Bank  v.  Dewey,  1  Sandf .  .509.  For  form  of  averment, 
see  New  York  Floating  Derrick  Co.  v.  New  .Jersey  Oil  Co.,  3  Duer, 
648. 

30  Ontario  State  Bank  v.  Tibbits,  80  C^l.  68;  and  see  Phillips  v. 
Goldtree,  74  id.  151;  compare  Labory  v.  Oi-plian  Asylum,  97  id.  270; 
Mora  V.  Mm-phy,  83  id.  12. 

3T  South  Y"ba.  etc..  Water  Co.  v.  Kosa,  80  Cal.  3:r..  The  pro- 
visions of  section  299  of  the  Civil  Code  do  not  ai)ply  to  or  include 
forcitrn  corporations.    Id. 

3s  Miller  v.  Pine  Min.  Co.,  2  Idaho,  1206;  35  Am.  St.  Rep.  289. 

39  Loup  v.  Railroad  Co.,  63  Cal.  99;  and  see  People  v.  Cent.  Pac. 
R.  R.  Co.,  83  id.  393. 

40  People  v.  Stanford,  77  Cal.  360;  compare  People  v.  Montecito 
Water  Co.,  97  id.  276;  .33  Am.   St.   Rep.  172. 

41  rjarncnn  v.  Port  Blakcly  Mill  Co.,  S  Wash.  St.  46V. 

42  National  Ins.  Co.  v.  Bowman,  60  Mo.  252;  Farmers',  etc..  Ins 
Co.   V.   Needles.   52  id.   17;   Conjrre.izational    Soc.    v.    Pen-y,   6   N.   H. 


299  CORPORATIONS.  §  374 

Code  of  California,  which  lirovides  a  general  law  for  the  forma- 
tion of  corporations,  has  enacted  that  "  if  a  corporation  does 
not  organize  and  commence  the  transaction  of  its  business  or 
the  construction  of  its  works  within  one  year  from  the  date  of 
its  incorporation,  its  corporate  powers  cease.  The  due  incor- 
poration of  any  company,  claiming  in  good  faith  to  be  a 
corporation  imder  this  part,  and  doing  business  as  such,  or  its 
right  to  exercise  corporate  powers,  shall  not  be  inquired  into, 
collaterally,  in  any  private  suit  to  which  such  dc  facto  corpora- 
tion may  be  a  party,  but  such  inquiry  may  be  had  at  the  suit  of 
the  state  on  information  of  the  attorney-general."'*^  The  gen- 
eral rule  thus  reduced  to  statutory  form  in  California  has  been 
adopted  in  many  of  the  states,  and  may  be  considered  as  the 
correct  statement  of  the  law  on  this  subject.^"* 

164;  25  Am.  Dec.  4.5.5;  Henriques  v.  Dutch  AVest  India  Co.,  2  Ld. 
Rayrn.  1535;  People  v.  Ravenswood  Turnpike  Co..  20  Barb.  518; 
Connecticut  Bank  v.  Sniitli,  17  How.  Vr.  487;  All  Saint.s'  Church 
V.  Lovett,  1  Hall,  213:  Ryan  v.  Yanlaudinsham.  7  Ind.  416;  Brook- 
Tille,  etc..  Turnpike  Co.  v.  McCarty,  8  id.  392;  65  Am.  Dec.  768; 
Tar  River  Xav.  Co.  v.  Xeal,  3  Hawks,  520;  Worchester  Med.  Inst. 
V.  Harding.  11  Cush.  285;  Snider,  etc.,  Co.  v.  Troy,  91  Ala.  224;  24 
Am.  St.  Rep.  887;  Gunther  v.  New  Orleans,  etc.,  Ass'n.  40  La  Ann. 
776;  8  Am.  St.  Rep.  554;  but  see  contra,  Welland  Canal  Co.  v. 
Hathaway.  8  Wend.  480;  24  Am.  Dec.  51. 

43Cal.  Civ.  Code,  §  358. 

44  Oroville,  etc.,  R.  R,  Co.  v.  Plumas  County,  37  Cal.  355; 
Dannobroge  Mining  Co.  v.  Aliment,  26  id.  286;  Stockton,  etc., 
Road  Co.  V.  Stockton,  etc.,  R.  R.  Co..  45  id.  680;  Bakersfield  T.  II. 
Ass'n  V.  Chester,  .55  id.  98:  Hughes  v.  Bank  of  Somerset,  5  Litt.  45; 
Searsburg  Turnpike  Co.  v.  Cutler,  6  Vt.  315;  Tar  River  Nav.  Co. 
V.  Neal,  3  Hawks,  520;  Palmer  v.  Lawi*ence,  3  Sandf.  161;  Brook- 
ville,  etc.,  Turnpike  Co.  v.  McCarty,  8  Ind.  392;  65  Am.  Dec.  768; 
John  V.  Farmers'  Bank.  2  Blackf.  367;  20  Am.  Dec.  119;  Trumbull 
Mut.  Fire  Ins.  Co.  v.  Honer,  17  Ohio,  407;  49  Am.  Dec.  463;  Rice 
V.  Rock  Islarul.  et<..  R.  R.  Co.,  21  111.  93;  Tarbell  v.  Page,  24  111.  46. 
In  Oroville.  etc.,  R.  R.  Co.  v.  Plumas  County.  suf>ra.  in  con- 
struing the  section  of  tlie  California  Code  al>ove  cited  the  court 
fiald:  "This  provision  docs  not  go  to  the  extent  of  precluding 
;i.  private  person  from  denying  tlie  existence  dc  jure  or  dc  facto 
of  an  alleged  eonioration.  It  can  not  l)e  true  tliat  the  mere  allega- 
tion that  a  i)arty  is  a  con)oration  puts  the  question  whether  it  is 
such  a  corjtoration  beyond  tlie  readi  of  Inquiry  in  a  suit  with  a 
private  person.  It  must  be  a  corporation  eillier  dc  jure  or  dc  facto, 
or  it  has  no  legal  eai)acity  to  sue  or  be  sued,  nor  any  cnpacity  of  .iny 
kind.  It  is  an  indispensable  allegntion  in  an  nelion  l)rouglit  by 
a  corT)oration.  that  tlie  jilaintiff  is  a  corporation;  and  it  results 
from  the  logic  of  pleading  that  the  opposite  party  may  deny  the 


§^  ;»:.■>.  oTo 


FOUXIS    01'    COMPLAINTS. 


300 


§  375.  lucorporation  infen-ed  and  how  proved.  Where,  in  an 
action  brought  against  tins  tlirectors  oi'  a  corporation,  facts  are 
stated  in  the  coniphiint  which  show  that  the  defendants  be- 
came a  body  corporate,  no  special  averment  to  that  effect  is 
nece^siiry.  The  fact  of  incorporation  is,  then,  an  inference  of 
law.""*  Proof  of  the  fact  of  incorporation  may  be  made  by  evi- 
dence of  the  charter  or  general  act,  or  by  organization  and 
user.-**' 


§  376.  Contracts  made  for,  but  not  in  name  of  corporation, 
how  alleged.  A  corporation  is  recognized  in  law  by  its  cor- 
porate name,  and  must  sue  and  be  sued  by  such  name,  under 

allegatiou.  *  *  *  It  is  not  contemplated  that  the  allegation 
that  the  company  was  duly  orgauized  should  put  the  fact  beyond 
dispute  and  dispense  with  all  evidence.  The  statute  furnishes  a 
rule  of  evidence.  It  is  declared  that  the  due  incoii)oration  of 
any  company  shall  not  be  iuquired  into  collaterally  in  any  private 
suit,  etc.,  in  a  certain  case;  that  is  when  the  company  claims  in 
good  faith  to  be  a  coiiDoration  under  the  laws;  of  the  state,  and  is 
doing  business  as  such  corporation.  The  alleged  corporation  must 
claim  in  good  faith  that  it  is  such  a  coi-poration ;  and  then  its  due 
incorporation  can  not  be  inquired  into  collaterally.  To  say  that 
the  '  due  incorporation '  can  not  be  inquired  into  collaterally, 
does  not  mean  that  no  inquiry  can  be  made  as  to  whether  it  is  a 
corix)ration.  Many  of  the  acts  required  to  be  performed  in  order 
to  make  a  complete  organization  of  the  coi-poration  may  have 
been  irregularly  performed,  or  some  of  them  may  have  been  en- 
tirely omitted,  and  the  inile  of  the  statute  is,  that  such  irregular 
or  defective  performance  shall  not  defeat  the  incorporation  when 
drawn  in  question  collaterally.  The  omission  of  the  names  and 
number  of  the  first  tinisteos  from  the  articles  of  association,  the 
failure  to  file  a  duplicate  of  the  articles  of  association  with  the 
secretary  of  state,  an  incorrect  statement  of  the  length  of  the  road, 
and  omission  of  the  statement  of  the  principal  place  of  business, 
and  many  other  irregularities  of  the  kind  mentioned  in  Spring 
Valley  Water  Works  v.  San  Francisco.  22  Cal.  440,  the  insuffi- 
cient acknowledgment  of  the  articles  of  incoiiDoration  (I)annebroge 
Mining  Co.  v.  Ailment,  20  Cal.  280),  are  irregularities  that  will 
not  defeat  the  corporation  when  its  organization  is  collaterally 
called  in  question.  A  substantial  compliance  with  the  require- 
ments of  the  statute  will  be  sufficient  to  show  a  corporation  de  jure 
In  an  action  between  the  corporation  and  a  private  person."  See, 
also,  People  v.  Montecito  Water  Co..  97  Cal.  270;  33  Am.  St.  Rep. 
172;  Martin  v.  Deetz.  102  Cal.  .55;  41  Am.  St.  Rep.  151. 

45  Falconer  v.  Campbell,  2  INIcLean.  195. 

■*«  WaterA-ille  Mfg.  Co.  v.  Bryan.  14  Barb.  182;  Stoddard  v. 
Onondaga  Annual  Conference,  12  id.  573. 


301  CORPORATIONS.  §  376 

which  it  transacts  its  business.'*^  The  directors  of  a  corporation 
are  its  chosen  representatives,  and  constitute  the  corporation 
for  all  purposes  of  dealing  with  others.  AVhat  they  do  as  the 
representatives  of  the  corporation,  the  corporation  itself  is 
deemed  to  do;  and  the  manifested  motives  and  intentions  of 
such  directors,  when  a  material  fact  is  in  issue,  are  to  be  im- 
puted to  the  corporation."*^  As  a  corporation  can  contract  only 
through  the  instrumentality  of  its  chosen  representatives,  it 
follows  that  a  corporation  is  the  proper  party  plaintiff  in  an 
action  founded  on  a  contract  made  for  its  benefit,  and  the  mis- 
nomer of  a  corporation  in  a  grant,  obligation,  or  other  written 
contract  does  not  prevent  a  recovery  thereon  by  or  against  the 
corporation  in  its  true  name,  provided  its  identity  is  sufficiently 
averred  and  proved.^^  Thus  a  contract  not  under  seal,  signed 
by  the  agents  of  a  corporation,  and  showing  upon  its  face  that 
the  agents  intended  to  contract  for  the  corporation,  and  not 
for  themselves,  may  be  declared  upon  aa  the  contract  of  the 
corporation,^*'  and  where  a  deed  is  made  to  a  corporation,  by  a 
name  varying  from  its  true  name,  it  may  sue  in  its  true  name, 
and  aver  that  the  defendants  made  the  deed  to  them  by  the 
name  mentioned  in  the  deed;  and  an  allegation  that  the  de- 
fendants acknowledged  themselves  to  be  bound  unto  the  plain- 
tiffs by  the  description  of,  etc.,  is  equivalent  to  such  an  aver- 
ment."^^  So,  also,  an  obligation  given  to  the  corporation,  which 
is,  in  terms,  payable  to  its  agents  or  directors  is  properly  de- 
scribed in  declaring  on  it,  as  given  to  the  corporation,  by  the 
name  and  description  of  the  directors,  etc.^^  In  California, 
in  an  action  on  a  note  executed  by  the  defendant,  payable  to 
the  "board  of  trustees  of  the  Sonoma  Academy,  or  their  suc- 
cessors in  office,"  and  which  specified  that  "no  change  in  the 
name,  character,  or  management  of  the  said  academy  "  should 

47Curtlss  V.  Murry,  L'fl  Cal.  0,3.3;  King  v.  Randlott.  3.">  id.  318; 
Bundy  v.  Birdsall,  20  Barb.  PA. 

4S  Maynard  v.  P'ireiiiaM's  Fund  Ins.  Co.,  34  Cal.  48;  91  Am.  Dec. 
672. 

40  Mf'Ilpdpe  V.  Boston  Iron  Co.,  r>  Cnsh.  l.')S.  170;  .51  Am.  Doc.  59; 
Mlnot  V.  Curtis,  7  Mass.  444;  Mpdway  Cotton  Mfg.  Co.  v.  Adams, 
10  Mass.  300;  Commercial  Bank  v.  French,  21  Pick.  480;  32  Am. 
Dec.  280;  Lowell  v.  Morse,  1  Met.  473;  Cliarltable  Ass'n  v.  Bald- 
win, id.  .".r.o. 

BO  Many  v.  I'.cfkman  Iron  Co..  9  Paige  Ch.  188. 

Bi  Now  Vf)rk   .\frican   Society  v.   Varick,   13  .Tolins.  38. 

B2Bayley  v.  Onondaga  In.s.  Co.,  G  Hill,  476;  41  Am.  Dec.  750, 


§  3^0  FOKMS    OK    ((IMIM, AIM'S.  302 

aU'eet  the  liability  ol"  the  payor,  liu'  complaint  of  the  "Cum- 
berland College "  was  held  sulliLient,  which  sUited  that  the 
plaintiir  was  a  corporation,  and  the  same  institution  of  learning 
formerly  known  as  the  "  Sonoma  Academy,"  that  the  academy 
was.  aftor  its  establishment,  changed  to  "  Cumberland  College," 
and  that  the  note  was  the  property  of  the  plaintiff.^^  Upon  the 
same  principle,  in  an  assumpsit  against  a  bank,  an  averment 
tliat  the  defendant  "  promised  through  its  president  and 
cashier,"  without  alleging  their  authority,  is  sufficient,  as  the 
bank  could  not  have  promised  except  through  its  agents  duly 
authorized.^"*  lU  the  common  law,  the  officers  of  a  corporation 
are  not  liable  personally  on  a  j^romissory  note  of  the  corpora- 
tion,^^ and  are  not  proper  parties  defendant  to  an  action  on  a 
mere  money  demand  against  the  corporation,  except  where 
statutes  authorize  suits  against  tliem.^'*"'  In  certain  actions  of 
an  equitable  character,  where  the  members  of  a  corporation  are 
authorized  to  bring  an  action  on  behalf  of  the  corporation,  the 
complaint  must  allege  that  the  officers  whose  duty  it  is  to  sue 
have  been  requested  to  institute  proceedings  for  that  purpose, 
and  have  refused  to  do  so.^'^  Where  an  obligation  is  executed 
to  two  corporations  Jointly,  they  may  sue  thereon  Jointly.'^^ 
Under  an  allegation  in  a  complaint  for  the  foreclosure'  of  a 
mortgage  of  due  authority  of  corporate  agents  to  execute  the 
mortgage,  proof  of  subsequent  ratification  is  admissible,  as  it 
is  equivalent  to  an  original  authority.^^  The  omission  in  a 
complaint  and  proceedings  npon  attachment  against  a  corpora- 
tion defendant  of  the  word  "  company "  from  its  corporate 
name  does  not  affect  the  attachment  lien,  and  the  error  is 
waived  by  an  appearance,  and  answer  of  the  corporation  in  its 
true  name  without  objection. ''^ 

53  Cumberland  College  v.  Ish.  22  Cal.  641. 

r>i  Bnnk  of  Metropolis  v.  Gnttschliok,  14  Pet.  19. 

!'■•'■'  Hall  v.  Crandall.  29  Cal.  HGT;  89  Am.  Dec.  64. 

f'"  Bralio  V.  rythaporas  Ass'n,  4  Duer,  658. 

B7  Vanderbilt  v.  Gan-ison,  3  Abb.  Pr.  361;  House  v.  Cooper,  16 
How.  Pr.  292;  3  Pomeroy's  Eq.  ,Tur.,  §  1095. 

MOathwright  v.  Calloway  Co.,  10  Mo.  663.  Siiffioienoy  of  com- 
plaint in  action  against  otficers  of  corporation.  See  Apiilesarth, 
77  Cal.  4f>8:  Aufpn.irer  t.  Anzeiger  Pub.  Co.,  9  Col.  377;  Matthews 
V.  Patterson.  16  id.  215. 

POSeal  V.  Pupet  Pound  Loan,  etc.,  Co.,  5  Wash.  St.  422. 

eonammond  v.  Starr,  79  Cal.  .5.56.  Sufficiency  of  complaint  in 
action  apain.'Jt  an  unincorporated  endowment  association.  See  Re- 
but T.  Legion  of  the  West,  96  Cal.  661. 


3u3  coKPOKATioxs.  §§  377-379 

377.  Actions  by  individual  banker.  In  New  York,  an  in- 
dividual banker  commencing  and  carrying  on  business  under  the 
General  Banking  Act  of  that  state,  and  the  acts  amending  the 
same,  is  a  corporation  sole;  and  as  such  he  may  assume  a  cor- 
porate name,  as  well  as  may  an  association  of  several  persons. 
An  action  by  such  banker  upon  a  cause  of  action  accruing  to 
him   as   such,   is   properly   brought   in   the   corporate   name.^^ 

§  378.  Corporation's  liability  for  libel,  slander  and  malicious 
prosecution.  In  California  it  is  held  that  a  corporation  has  the 
pciwer  to  compose  and  publish  a  libel,  and  by  reason  thereof, 
uiien  done,  becomes  liable  to  an  action  for  damages  by  the 
person  of  and  concerning  whom  the  words  are  composed  and 
published.^2  And  on  the  same  principle,  in  an  action  for  a  libel 
published  by  a  corporation,  acting  through  its  directore  in  the 
discharge  of  their  office,  the  malice  of  the  directors  is  the 
malice  of  the  corporation.^^  Conversely  a  corporation  may 
maintain  an  action  for  libel  on  it  as  such,  for  words  affecting 
its  business  or  property,  if  special  damages  be  alleged  and 
proved.®*  In  ilissouri,  however,  it  has  been  held  that  an  action 
for  malicious  prosecution,  slander,  false  imprisonment,  or  assault 
and  battery,  can  not  be  maintained  against  a  corporation  aggre- 
gate, but  must  be  brought  against  the  individuals  implicated 
personally.®* 

§  379.  Corporate  existence,  when  commences.  Under  the 
general  laws,  and  by  statute,  the  word  "■  person,"  in  its  legal 
signification,  is  intended  to  include  artificial  as  well  as  natural 
]>ersons.®®     Under  the  laws  of  California,  corporations  have  a 

61  Bank  of  Havana  v.  Wickhani,  7  Abb.  Pr.  1.34;  Hallett  v. 
II.Trrower,  33  Barb.  537;  see  Cal  Oiv.  Code,  §  G02,  amondniont  of 
isf)7. 

*'2  Maynard  v.  F.  F.  Ins.  Co.,  34  Cal.  48;  91  Am.  Dec.  (572;  see, 
also.  Mo.,  etc.,  R.  R.  Co.  v.  Richmond,  73  Tex.  5G8;  1.5  Am.  St.  Rep. 
71)4;  Howe's  Machine  Co.  v.  Sender,  58  Ga.  64;  Evening  Jour. 
Ass'n  V.  McDennott,  44  N.  .T.  L.  431;  43  Am.  Rep.  392;  Fogj?  v. 
Railroad  Co..  148  Mass.  .513;  12  Am.  St.  Rt'p.  583. 

«•'<  Maynard  v.  Fircnian's  Fund  Ins.  Co..  34  Cal.  48;  91  Am.  Dec. 
r,72:  rhiladPli.hia,  etc.,  R.  R.  Co.  v.  Qnipley,  21  How.  (TJ.  S.)  204; 
Alkn  V.  News  Pnb.  Co..  81  Wis.  120. 

e*  Shoe  &  I.oathpr  Bnnk  v.  Thoiiipann.  18  Ahi).  I'r.  413;  State 
v.  Boof;hi-r.  ?,  Mo.  Aj.p.  442. 

66Chil(ls  V.  Banlv  of  Missouri,  17  M<>.  21:!.  But  it  is  now  lield 
otherwise  in  Mi.ssonri.  Boogher  v.  Life  As.s'n,  75  Mo.  319;  .Tohnson 
V.  Dispatch  Co..  05  id.  .5.39;  27  Am.  Rep.  293. 

«6  Douglas  V.  P.  M.  S.  S.  Co.,  4  Cal.  304;  Gal.  Code  Civ.  Pro.,  §  17. 


§^  ;>SU-o83  FOKMS   OF   COAll'LAIMTS.  304 

Ic^'-al  o.xisleiioo  from  the  date  of  iiling  the  certificate  of  iucor- 
poratiou  in  the  oUice  of  the  county  clerk/'^ 

§  380.  Verification  by  corporation.  When  a  corporation  is  a 
pajty,  the  venlicatiou  of  the  pleading  may  be  made  by  any 
otheor  tliereof;''**  and  in  some  states  by  an  agent  or  attorney 
tiiereof.''''  And  this  includes  municipal  as  well  as  private 
corporations.'^" 

§  381.  Allegation  of  residence.  In  New  York,  in  an  action 
against  a  foreign  corporation  brought  in  the  Superior  Court  of 
tlie  city  of  New  York,  where  the  complaint  states  a  cause  of 
action  of  which  the  court  has  jurisdiction,  it  is  unnecessary  to 
aver  that  the  plaintiff  resides  within  the  city  of  New  York;'^^ 
or  that  the  defendants  transact  their  business  or  keep  an  office 
within  the  city.'^^ 

§  382.  Against  corporations  formed  under  the  act  in  relation 
to  roads  and  highways. 

Form  No.  77. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  a  corporation  created  by  and  under 
the  laws  of  this  state,  organized  pursuant  to  an  act  of  the  leg- 
islature entitled  [title  of  action  in  full],  passed , 

18..,    and    the  acts    amendatory    thereof   and  supplementary 
thereto. 

II.  [State  a  cause  of  action. ]'^^ 

[Demand  of  Judgment.] 

§  383.  Liability  of  directors  of  turnpike  company.  In  Califor- 
nia, the  directors  of  a  corporation  formed  for  the  construc- 

67  Mokehimne  Hill  Min.  Co.  v.  Woodbury,  14  Cal.  424;  73  Am.  Dec. 
658;  Cal.  Civil  Code,  §  296. 

68  Cal.  Code  Civ.  Pro.,  §  446;  N.  Y.  Code,  §  157;  Ariz.  Code  of 
Pro.,  §  .55;  Idaho,  §  55;  §§  291,  292,  ante. 

69  Orepron  Code,  §  348;  Oref.  Decis.  79;  see  Macauley  v.  Printing 
Co.,  14  Abb.  N.  C.  316. 

TOHixoD   V.  George,  18  Kan.   253. 

71  Spcnoer  v.  Rogers  Locomotive  Worlis,  17  Abb.  Pr.  110;  S.  C, 
8  Bosw.  612. 

72  Cora  Exchange  Bank  v.  Western  Transportation  Co.,  15  Abb. 
Pr.  319,  note:  Koenig  v.  Nott,  2  Hilt.  323;  S.  C,  8  Abb.  Pr.  384. 

73  The  sufficiency  of  this  form  has  been  upheld  in  Oswego  & 
Synicusf  Plnnk  Road  Co.  v.  Rust,  5  How.  Pr.  390;  N.  Y.  Floating 
Derrick  Co.  v.  N.  J.  Oil  Co.,  3  Duer,  648. 


305  CORPORATIONS.  §  384 

tion  of  plank  or  turnpike  roads  are  not  personally  liable  under 
the  act  creating  such,  corporations,  on  a  contract  made  by  them, 
which,  by  its  terms,  binds  the  corporation,  unless  the  stock- 
holders have  adopted  by-laws,  and  the  same  have  been  filed  in 
the  recorder's  ofiice,  and  the  contract  is  made  in  violation  of 
the  by-lawsJ* 

§  384.   By  corporation  on  stock  assessments. 
Form  No.  ^8. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  in  pursuance  of  an  act  of  the  legislature  of  the  state 
of  California,  entitled  "an  act"   [give  the  title  of  the  act], 

passed ,  18. .,  and  of  the  acts  amendatory  thereof 

and  supplementary  thereto,  the  above-named  company  was  or- 
ganized and  formed  into  a  corporation  under  the  name  of  the 

Company,  and  ever  since  its  said  organization  has 

had  its  principal  office  and  place  of  business  at  the  city  of 

II.  That  on  the   day  of   ,  18.  .,  at 

,  defendant  and  certain  other  persons,  being  de- 
sirous of  associating  themselves  together  for  the  purpose  of  con- 
structing a  toll  road  [or  state  the  actual  purpose]  from  tlie 
village  of  K.  to  the  village  of  S.  in  said  county,  in  consideration 
thereof  and  of  the  mutual  promises  each  to  the  other  and  of 
the  benefits  to  be  derived  from  being  members  of  said  associa- 
tion, made  and  subscribed  a  certain  agreement  in  writing,  as 
follows,  to-wit: 

[Copy  subscription  paper,  with  subscriber's  names,  and  add]: 
and  other  persons  whose  names  are  here  omitted. 

III.  That  the  said  defendant  did,  at  the  time  of  subscribing 
said  agreement,  set  opposite  to  his  name  thereto  subscribed  the 
number  of  ten  shares,  and  that  the  par  value  of  each  share  is 
fifty  dollars,  and  that  said  defendant  agreed  to  take  and  pay 
for  the  Fame. 

IV.  Tbat    afterwards,    to-wit,    on    the     day    of 

,  18 .  . ,  at  a  regular  meeting  of  the  trustees  of  said 

company,  an  assessment  of  five  per  cent,  of  the  par  value  of  each 
share  of  the  capital  slor-k  of  the  said  corporation  was  duly 
levied;  that  at  the  time  of  the  levy  of  such  assessment,  defend- 

74  Hall  V.  Crandall.  20  f'al.  508;  89  Am.  Deo.  64;  and  see  Blanchard 
V.  Kaull.  44  Cnl.  440. 

Vol.  1—30 


§  o^j 


lOUMy    OF    (  ^)M1'LA1^"TS.  306 


ant  was  n  subscribor  lo  the  capital  stock  of  said  corporation  in 

the  aiiuHint  of shares,  of  the  par  vahie  of 

dolhirs,  and  was  the  owner  of  such  stock 

\'.  That  afterwards,  etc.  [Allege  the  number  of  assessments 
defeiulant  has  failed  to  pay,  inicli  as  above.] 

Yl.  That  the  defendant  had  duo  notice  of  each  of  the  said 
assessments,  made  by  the  trustees  of  said  company  as  afore- 
said, and  that  the  same    were    duly    published    in  the  daily 

,  a  newspaper  printed  and  published  in  the  city 

of    ,  for  at  least    days,   and  in   every 

respect  according  to  \a.\v. 

VII.  That  tJie  whole  sum  of dollars  is  now  due 

plaintiff  from  defendant  thereon,  and  no  part  thereof  has  been 
paid. 

[Demand  of  Judgment.] 

§  385.   stockholder's  liability  for  assessments,  how  enforced. 

The  liability  of  a  stockholder  for  a  valid  assessment  may  be 
enforced  by  an.  action  at  law,  upon  his  promise,  express  or  im- 
plied, to  pay  tlie  same,  although  the  corporation  is  authorized 
to  sell  the  delinquent  shares  of  its  stockholders  for  nonpay- 
ment of  assessments.  The  remedy  of  sale  given  to  the  corpora- 
tion, under  such  circumstances,  is  merely  cumulative,  and  may 
be  waived  l)y  the  corporation.'*^     In  some  of  the  states,  how- 

75  Salem  &  Tenn.  R.  R.  Co.  v.  Tipton,  5  Ala.  787;  S.  C,  39  Am. 
Dec.  344;  Worcester  Turnpike  Co.  v.  Willard,  5  Mass.  80;  S.  C,  4 
Am.  Dec.  39;  Instone  v.  Franlcfort  Bridge  Co..  2  Bibb,  576;  S.  C,  5 
Am.  Dec.  038;  Taunton  Turnpil^e  Co.  v.  Wliiting.  10  Mass.  327;  S. 
C,  G  Am.  Dee.  1^;  Gaban,  etc.,  Turnpike  Road  v.  Hurtin,  9  Johns. 
217;  S.  C.  6  Am.  Dec.  273;  Conn.,  etc.,  R.  R.  Co.  v.  Bailey,  24  Vt. 
4G5;  r»8  Am.  Dec.  181;  Troy,  etc.,  R.  R.  Co.  v.  Ker,  17  Barb.  581; 
Northern  R.  R.  Co.  v.  Miller,  10  id.  260;  Eastern  Plankroad  Co.  v. 
Vauglian,  20  id.  155;  Spear  v.  Crawford,  14  Wend.  20;  28  Am.  Dec. 
.513;  Troy,  etc.,  R.  R.  Co.  v.  McChesney,  21  Wend.  296;  Dayton  v 
Bonst,  31  N.  Y.  435;  Carlisle  v.  Cahawba,  etc.,  R.  R.  C^.,  4  Ala.  70; 
Rockville,  etc.,  Road  v.  :Maxwell,  2  Cranch  C.  C.  451;  Delaware, 
etc..  Canal  Co.  v.  Sansom,  1  Binn.  70;  Kirksey  v.  Floiida,  etc., 
Road  Co.,  7  Fla.  23;  Inplis  v.  Great  Nortliern  Ry.  Co.,  1  Macq.  112; 
South  Bay,  etc.,  Co.  v.  Gray,  30  Me.  547;  Mann  v.  Cooke,  20  Conn. 
178;  Raymond  v.  Caton,  24  111.  123:  City  Hotel  v.  Dickinson.  6  Gray, 
586.  Tliat  tlie  .Justices'  Courts  in  California  have  jurisdiction  over 
actions  to  collect  unpaid  assessments,  the  liability  therefor  being 
founded  on  contract;  see  Alpers  v.  Superior  Court,  3  West  Coast 
Rep.  326;  Arroyo  Ditch  Co.  v.  Superior  Ct.,  92  Cal.  47;  27  Am.  St. 
Rep.  91. 


307  CORPORATIONS.  §  386 

ever,  the  remedy,  in  the  first  instance,  is  by  a  sale  of  the  stock. 
It  is  so  held  in  Massachusetts,'^'^  in  Xew  Hampsliire,'^  and  in 
Maine."*  In  California  it  has  been  decided  in  a  recent  case, 
that  the  stockholders  of  mining  corporations  organized  under 
the  laws  of  California  incur  no  liability  ex  contractu,  either  ex- 
press or  implied,  to  pay  in,  either  for  the  prosecution  of  the 
enterprise  or  the  payments  of  the  debts  of  the  company,  the 
nominal  par  value  of  their  shares;  that  unless  stockholders  of  a 
corporation  have  subscribed  for  stock,  or  are  the  successors  of 
subscribers,  assessments  levied  on  their  stock  can  be  enforced 
only  by  the  sale  of  their  shares,  and  that  the  provisions  of  the 
Code,  defining  the  personal  liability  of  stockholders,  only  apply 
where,  from  the  terms  of  the  stockholder's  subscription,  such 
liability  was  incurred.'^^  In  such  state  also,  it  has  been  recently 
held  that  corporations  organized  and  existing  under  the  pro- 
visions of  the  Code  have  authority  to  levy  and  collect  assess- 
ments on  stock  for  which  the  subscription  price  has  been  fully 
paid.so 

§  386.  Averment  of  assessments,  how  made.  In  an  action  to 
collect  an  assessment,  the  complaint  must  aver  a  proper  assess- 
ment, and  state  how  it  was  ordered,  so  as  to  make  it  conform 
to  the  charter  and  by-laws,  or  general  act  under  which  the 
corporation  was  organized.*^  In  Pennsylvania,  an  averment 
that  the  assessment  was  duly  made  is  a  sufficient  allegation  to 
show  that  they  conformed  to  the  statute.*^  In  Ohio,  however, 
where  the  statute  provided  for  a  thirty-days  notice  of  the  time 
and  place,  an  averment  that  the  defendant  was  called  upon 
and  duly  notified  by  publication  was  held  insufficient,  as  being 

70  Boston,  etc.,  R.  R.  Co.  v.  Wellirifrton,  ll.S  ]Mass.  70;  City  Hotel 
V.  Dickinson,  6  Gray,  586;  New  Bedford,  etc.,  Co.  v.  Adams,  8 
Mass.  1.38. 

7T  N.  H.  Cent.  R.  R.  Co.  v.  .Tohnson.  P,0  N.  II.  RnO;  CA  Am.  Doc.  300; 
FiPfatarina  Ferry  Co.  v.  .Tones.  39  X.  II.  4f)1 ;  Wliite  Mts.  R.  R.  Co.  v. 
Eastman,  ?A  id.  124. 

78  Kennebec,  etc.,  R.  R.  Co.  v.  Kendall,  31  Me.  470;  Kennebec, 
etc.,  R.  R.  Co.  V.  .Tarvls,  .34  id.  300. 

70  /„  re  South  Mt.  Con.  M.  Co.,  7  Sawy.  .30. 

po  Santa  Cniz  B.  R.  Co.  v.  Spreckles,  r,.".  Cnl.  103;  Given  v.  Abistino 
Medical  Co..  Of)  r.-il.  322;  and  see  Sparks  v.  Ditch  Co.,  2  Idaho,  1030. 

SI  Gibbai-t  V.  .Tnnetion  TJ.  R.  Co..  12  Ind.  484;  Atlantic,  etc., 
Ins.  rV).  V.  Younp.  .38  N.  IT.  4.'1 :  7."  .\iii;  Dec.  200. 

82  Bavington  v.  Pittsburg,  etc.,  II.  R.  Co.,  34  Penn.  St.  S'tS. 


vj  ;?S7  FOKAIS   OF   COMPLAINTS.  3U8 

toM  -■•».' Ill" nil.^''  And  ill  this  lalter  state,  in  proccediug  under 
tho  provisions  of  (he  Ivevised  Statutes,  an  allegation  is  neces- 
sary that  the  directors  required  subscriptions  to  be  paid  in  is- 
stalhuents  of  a  certain  amount  at  a  certain  time.'^"*  Where  a 
eor{)oration  becomes  insolvent,  and  ceases  to  act  under  its 
charter,  so  that  the  prescribed  mode  of  making  assessments 
fan  not  be  complied  with,  the  debt  will  be  considered  as  due 
without  further  demand.''^  But  in  an  action  brought  by  the 
receiver  of  an  insolvent  corporation,  to  recover  on  a  stock  sub- 
scription, which  provided  that  after  twenty  per  cent,  had  been 
paid,  the  balance  should  be  subject  to  the  call  of  the  directors, 
as  they  may  be  instructed  by  a  majority  of  the  stockholders, 
the  complaint  must  show,  by  alleging  losses  or  otherwise,  the 
necessity  for  an  assessment,  and  a  call  made  on  the  stock- 
holders.®® 

§  387.   By  a  corporation,  on  a  stock  subscription. 

Form  No.  79. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  [Aver  incorporation,  as  in  No.  78.] 

II.  That  in  contemplation  of  the  incorporation  of  these  plain^ 
tiffs,  and  for  the  purpose  of  constrncting,  owning,  and  main- 
taining the  [toll  road],  then  contemplated,  the  defendant,  with 

others,  on  the day  of ,  18 .  . ,  at , 

became  a  suliscriber  to  the  stock  of  the  said  company  by  [sever- 
ally] signing  and  delivering  an  agreement  in  writing,  of  which 
the  following  is  a  copy:     [Copy  subscription  paper.] 

III.  That,  among  other  persons,  the  defendant  signed  and 
executed  said  agreement,  and  set  opposite  to  his  name  the  sum  of 

dollars,  which  he  thereby  agreed  to  pay  to  said 

companv. 

IV.  That  after  the  defendant  had  thus  suliseribed,  and  on  or 

about  the day  of ,  18 .  . ,  he  subscribed 

to  the  artiHo?  of  association  of  said  company  his  name  and  his 
place  of  rnpidonoo,  to-wit, and  the  number  of  shares 

«••?  Ppnn.  fc  O.  Canal  Co.  v.  Webb,  0  Ohio,  1.3G. 

«4  >[.  r.  &  T>.  M.  R.  R.  Co.  V.  Hall,  20  Ohio  St.  310;  Devondorf  v. 
Bcarrlsley.  23  Barb.  fi5f>;  Williams  v.  Baboook.  20  id.  100;  Hurlbut 
V.   Root.   12  now.   Pr.  .511;  Williams  v.   Lakoy,   15  id.   206. 

R5  Henry  v.  V.  &  A.  R.  R.  Co.,  17  Ohio,  187. 

SB  Chandler  v.  Keith,  42  Iowa,  99. 


309  CORPORATIONS.  §  388 

of  stock  taken  by  him,  to-wit,   shares,  amounting  to 

dollars,  the  shares  of  stock  being 

dollars  each. 

V.  That  the  plaintiff,  by  its  directors,  on  the day  of 

, ,  18 .  . ,  at ,  tendered  to  the  defend- 
ant the  shares  of  stock,  so  subscribed  for  by  him,  and  demanded 
the  defendant  to  pay  thereon  the  sum  of ,  agree- 
ably to  said  subscription  and  the  charter  and  by-laws  of  tlie 
company. 

VI.  That  the  plaintiff  has  performed  all  the  conditions  thereof 
on  its  part. 

VII.  That  the  defendant  has  not  paid  the  said  subscription, 
or  any  part  thereof. 

[Demand  of  Judgment.] 

S  388.  Averments  in  actions  on  stock  subscription.  A  com- 
plaint on  a  subscription  to  be  paid  as  assessed  must  aver  a  proper 
assessment.^^  Where  the  general  law  or  charter  under  which 
the  corporation  was  organized  requires  the  whole  or  a  certain 
part  of  the  stock  to  be  subscribed  before  the  corporation  can  act, 
a  complaint  to  collect  an  individual  subscription  must  allege  that 
such  conditions  have  been  complied  with.^  If  there  has  been 
a  different  agreement  between  the  subscribers,  this  rule  does  not 
apply.^^  In  Ohio  it  has  been  held  sufficient  to  aver  the  due 
election  of  directors,  as  that  implies  that  the  requisite  amount  of 
stock  has  been  subscribed.^^  Where  the  subscription  was  con- 
ditional, an  allegation  of  the  performance  of  the  condition  is 
essential.  Under  the  Code,  it  would  seem  that  an  allegation 
that  the  plaintiff  had  performed  all  the  conditions  on  his  part, 

87  Gebhart  v.  Jvmction  K.  R.  Co.,  12  Ind.  484.  For  a  form  of 
complaint  under  the  statutes  of  New  York,  see  Pouplilvoepsic'  Plank- 
road  Co.  V.  Griffin,  21  Barb.  4.">4;  Oswejio  &  Syracuse  Plankroad 
Co.  V.  Rust,  5  How.  Pr.  390;  Dutchess  Cotton  Mfg.  Co.  v.  Davis, 
14  Johns.  238;  7  Am.  Dec.  459;  First  Bapti.st  Soc.  v.  Rapolee,  16 
Wend,  fiorj;  Buffalo,  etc.,  R.  R.  Co.  v.  Caiy,  20  N.  Y.  75;  Welland 
Canal  Co.  v.  Hatliaway,  8  Wend.  480;  S.  C.  24  Am.  Dec.  51,  note, 
58. 

ss.Tcwett  V.  Rnllway.  PA  Ohio  St.  (KH ;  'I'opcka  Bridge  Co.  v. 
Cummings,  3  Kan.  5.');  Fry  v.  Lexington,  etc.,  R.  R.  Co..  2  Mot.  (Ky.) 
314;  TJve.sfy  v.  Dmaha  Hotel,  5  Neb.  rA). 

RO  Enimitt  v.  Railroad  Co.,  31  Ohio  St.  23;  Lail  v.  Mt.  Sterling 
Coal  Co.,  13  Bush.  .''.2. 

00  Ashtabula,  etc.,  R.  R.  Co.  v.  Sinitli.  !.''»  Olilo  St.  328. 


§  ass 


FOK.MS    Ol'    COMI'KAINTS.  310 


is  sullk-ii-'nt.''"  H  Hie  action  is  to  recover  the  entire  amount  of 
the  subscription,  the  eoniphiint  sh.uiUl  allege  a  tender  of  the 
stock,  or  a  reatlinoss  and  willingness  on  the  part  of  the  corpora- 
tion to  deliver  it  to  the  ilet'endant,  where  such  acts  are  not  con- 
ditions precedent.'-'-  1  n  conformity  with  the  practice  of  some  of 
the  states,  the  complaint  must  contain  a  copy  of  the  subscription 
pajier."^  The  company  nuiy  assign  its  right  to  recover  subscrip- 
tions,**^  but  in  such  case  the  com])laint,  in  an  action  by  tlie 
assignee,  must  aver  the  assignment.'-''''  An  action  against  the 
subscriber  of  stock  upon  his  subscription,  according  to  its  terms, 
is  not  an  action  under  the  California  statute  (Cah  Civ.  Code, 
§  332),  to  recover  assessments  upon  the  subscribed  capital  stock, 
and  the  complaint  need  not  aver  an  equal  demand  upon  all  of 
the  subscribers,  nor  show  a  liability  to  an  assessment  under  ihe 
statute,  and  any  averments  in  regard  to  assessment  or  calls  by 
the  corporation  upon  the  subscribers  to  its  stock  may  be  dis- 
regarded as  surplusage.^*'  In  an  action  by  the  receiver  of  an 
insolvent  corporation  to  recover  upon  unpaid  subscriptions  to  its 
stock,  the  complaint  does  not  state  a  cause  of  action  under  the 
"Washington  statute  (Gen.  Stats.,  §  1507),  if  it  fails  to  allege  that 
the  defendant  had  notice  of  the  call  for  assessments  upon  his 
stock,  made  by  the  receiver  under  the  order  of  the  court.^^  A 
complaint  upon  a  subscription  to  the  stock  of  a  proposed  corpo- 
ration which  does  not  show  upon  its  face  that  the  articles  of 
incorporation  failed  to  state  that  the  defendant  was  a  subscriber 
to  its  stock,  is  not  liable  to  a  general  demurrer  upon  that 
ground.  ^^ 

01  Ti-ott  y.  Sarchett,  10  Ohio  St.  241;  Cal.  Code  of  Pro.,  §  457; 
Ohio  R.  S.,  §  .5091;  see  Mackay  v.  Elwood.  12  Wash.  St.  579. 

82  St.  Paul,  etc.,  Ry.  Co.  v.  Bobbins.  2.3  Minn.  439;  James  v. 
C.  H.  &  D.  R.  R.  Co.,  2  Disney,  201;  Minneapolis  Harvester  Works 
V.  Libby,  24  Minn.  327. 

»3  Hudson  v.  Plankroad  Co.,  4  G.  Greene,  152;  Stockton  v.  Creager, 
.51  Ind.  202;  but  see  Van  Riper  v.  American  Cent.  Ins.  Co.,  60  id. 
1 2.3. 

ft^  Downie  v.  Hoover,  12  Wis.  174;  78  Am.  Dec.  730;  James  v. 
C.  H.  &  D.  R.  R.  Co.,  2  Disney,  261;  Trott  v.  Sarchett,  10  Ohio  St. 
241;  ^I.  &  C.  R.  R.  Co.  v.  Elliott,  id.  .57. 

f»s  Minneajtolis  Harvester  Works  v.  Lib1>y,  24  Minn.  827. 

»«Marysville  Electric,  etc..  Co.  v.  Johnson,  93  Cal.  538;  27  Am. 
St.   Rep.  21:5. 

07  Eldnrkin  v.  Peterson,  8  Wa.sh.  St.  674. 

o«  MarA-svillc  Electric,  etc.,  Co.  v.  Johnson.  93  Cal.  538;  27  Am. 
St.  Rep.  215. 


311  coRPOiiATioxs.  §§  389-391 

§  389.  Separate  subscriptions.  Where  a  defendant  subscribed 
in  his  own  name  for  fifty  shares  of  railroad  stock,  and 
at  the  same  time  subscribed  for  fifty  more,  signing  his  own 
name  again,  adding  thereto  the  letters  "  Exr.,"  to  indicate  that 
he  took  the  additional  fifty  shares  for  an  estate  for  which  he  was 
executor,  it  was  held  that  these  were  separate  contracts,  upon 
which  separate  actions  would  lie,  and  that  the  pendency  of  an 
action  to  enforce  payment  of  the  first  subscription  formed  no 
sufficient  ground  for  abating  the  action  to  enforce  the  second 
subscription.^^  And  ^vhere  one  guarantees  the  payment  of  a 
subscription,  the  subscriber  and  the  guarantor  may  be  sued  in 
the  same  action.^^*'  A  release  of  the  guarantor,  however,  will 
not  discharge  the  subscriber,  as  their  liabilities  are  sc\eral.^"^ 

§  300.  Actions  by  religious  corporations.  Keligious  corpora- 
tions may  sue  for  subscription. ^'^^  Trustees  of  such  corpora- 
tions must  first  establish  their  right,  before  they  can  use  the 
corporate  name.^*^-''  Before  the  court  can  take  notice  of  the 
regulations  of  particular  religious  denominations,  or  their  na- 
ture or  effect,  their  existence  should  be  properly  averred  and 
proved  as  matter  of  fact.^°* 

§  391.  On  a  subscription  to  the  expense  of  a  public  object. 
Form  No.  8o. 
[Title.] 
The  plaintifl"  complains,  and  alleges: 

I.  [Aver  incorporation.] 

II.  That  the  plaintiff,  in  the  month  of ,  18.  ., 

was  erecting  a  building  at  ,  for  the  purpose  of 

public  worship. 

III.  That  the  defendants  and  others  requested  the  plaintiff 
to  complete  the  same,  and  for  the  purpose  of  enabling  the 
plaintiff  to  do  so,  they  subscribed  and  agreed  to  pay  to  the 

MErle  &  N.  Y.  City  R.   R.  Co.  v.   Patrick,  2  Keyes,  256. 

100  Nell  V.  Trustees,  31   Ohio  Rt.  in. 

ifi  Demlnjr  v.  TrusteeB,  31  Ohio  St.  41. 

if'2  Dansvllle  Peminary  v.  Wolfh.   ?,8  Barb.   221. 

103  North  Baptist  Churcli  v.  Parker,  30  Barb.  171. 

104  Younps  V.  Ransom,  31  Barb.  4.1.  As  to  what  parties  can 
maintain  an  action  apainst  a  defendant,  treasurer  of  a  religious 
corporation,  for  money  received  by  him  as  subscriptions  and 
donations  for  an  enterprise  not  immediately  connected  with  the 
chureh  corporation,  see  Rector,  etc.,  of  the  Church  of  tlie  Redeemer 
V.  Crnwford.  .".  Rol).  100;  C:il.  Civ.  Code.  §  002,  amendment  of  1897. 


<  3it2  FORMS   OF   COMPLAINTS.  312 

pluiutiir  the  sum  of dollars,  in  consideration  of 

the  pivniitios.  luul  ol'  the  like  subscription  iind  agreement  of 
other  iH'rj^ons. 

1\'.  That  upon  the  i'aith  ol"  said  subscription  the  plaintiff 
proceeded  uith  the  oivetiou  ol'  the  building,  and  expended 
thereon  largo  sums  of  money,  and  incurred  large  liabilities, 
and  completed  said  building,  and  otherwise  duly  performed  all 
the  conditions  on  its  part. 

V.  That  the  defendant  has  not  paid  said  subscription,  or  any 
part  thereof   [except,  etc.] 

[Demand  of  Judgment.] ^°" 

§  392,  Consideration  for  subscription.  The  general  rule  13 
settled  by  a  weight  of  authority)  although  there  are  many  cases 
which  seem  to  hold  the  contrary  doctrine,  that  merely  signing 
a  subscription  paper  which  has  been  signed  by  others,  for  the 
purpose  of  raising  funds  for'  the  accomplishment  of  a  public 
object,  is  not  sufficient  to  render  a  subscriber  liable.  The 
reason  of  this  rule  is  the  want  of  consideration  for  the  promise. 
If,  however,  the  subscription  paper  contains  a  request  to  those 
who  represent  the  object  for  which  the  subscription  is  made 
to  do  an  act,  or  incur  any  expense,  or  submit  to  any  incon- 
venience, and  on  the  strength  thereof  such  act  is  done,  and 
expense  or  inconvenience  incurred,  this  request  and  perform- 
ance have  uniformly  been  held  to  be  a  sufficient  consideration 
to  support  the  promise  made  in  the  subscription  paper.^*^ 

105  The  siifRcienoy  of  this  form  is  sustaiiu'd  in  Richniondville 
Union  Sem.  v.  Brownell,  .ST  Rarl).  .53.^;  Wayne,  etc.,  Institute  v. 
Smith.  .30  id.  ,"'!:  Oliio  Wesleyan  Female  College  v.  Higgins,  Bx'r, 
etc.,  lf>  Ohio  St.  20. 

106  Farmington  Academy  v.  Allen,  14  Mass.  172;  S.  C,  7  Am.  Dec. 
201;  Phillips  Limerick  Academy  v.  Davis,  11  Mass.  113;  S.  C,  6 
Am.  Dec.  102:  Trustees  v.  Gai-vey,  .53  111.  401;  .5  Am.  Dec.  ,51;  Bridge- 
water  Academy  v.  Gilbert,  2  Pick.  579;  S.  C,  13  Am.  Dec.  4,57,  and 
note;  McChire  v.  Wilson,  43  111.  3.5r>;  Philamath  College  v.  Hartless, 
6  Orep.  1.58:  25  Am.  Rep.  ,510;  Trustees  v.  Stewart,  1  N.  Y.  581; 
Howard  v.  Williams,  2  Pick.  80;  Barnes  v.  Ferine,  12  N.  Y,  18; 
McAnley  v.  Billinger,  20  ,Tolins.  80;  Thompson  v.  Mercer  M.  Co., 
40  III.  .37r»:  Olilo  Wes.  Female  College  v.  Love,  IG  Ohio  St.  20;  Troy 
Academy  v.  Nelson,  24  Vt.  18J);  Cittings  v.  Mayhew,  6  Md.  113; 
Phipjis  V.  .Tones,  20  Penn.  St.  200;  .59  Am.  Dec.  70S;  Wilson  v. 
Baptist  Ed,  Soc,  10  Barb.  ,309;  Oalt's  Ex'r  v,  Swain,  9  Gratt.  633; 
r.O  Am.  Dec.  311:  L'Amoreux  v,  Gould,  7  N.  Y,  349;  .57  Am.  Dec.  524; 
Fnxcroft  Acndemy  v.  Favor,  4  Greenl.  ,382.  In  New  Hnmpshiro, 
however,  the  mutual  promises  of  the  subscribers  are  held  to  be 


313  coKPOKATioxs.  §§  393,  394: 

§  393.  Actions  to  recover  subscriptions,  by  wbom  should  be 
brought.  Au  action  for  money  due  a  church  on  a  verbal  con- 
tract with  the  trustees  should  he  brought  in  the  name  of  the 
corporation,  and  not  in  the  name  of  the  trustees.^*^^ 

§  394.  Against  a  municipal  corporation. 
Form  No.  Si. 
[Title.] 


A.  B.,  Plaintiff. 


1 


agai)ist  y 

The  County  of  Defendant 


The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  a  municipal  corporation,  created 
by  the  laws  of  this  state. 

II.  [State  cause  of  action.] 

III.  That  on  the day  of ,  at , 

the  plaintiff  presented  in  writing  the  claim  or  demand  here- 
inbefore set  forth  to  the  board  of  supervisors  of  the  county  of 

,  for  allowance,  and  that  they  failed  and  refused 

to  allow  the  same  or  any  part  thereof. 

IV.  That  a  copy  of  said  claim  as  presented  to  the  said  board 
of  supervisors  is  hereunto  attached  and  made  a  part  of  this 
complaint. 

V.  That  the  defendant  has  not  paid  the  same. 

[Demand  of  Judgment.] 

a  sufficient  consideration.  George  v.  Hairis,  4  X.  H.  533;  17  Am. 
Dec.  440;  Society  v.  Periy,  G  N.  H.  1G4;  2.5  Am.  Dec.  4i>");  Society 
V.  rjoddard,  7  N.  H.  43ii;  so  in  Kentucky.  Turnpike  Co.  v.  Lancaster, 
79  Ky.  .5.52.  And  the  same  doctrine  is  held  in  California.  Orand 
I.odfre.  etc..  v.  Fai-nham,  70  Cal.  158;  West  v.  Crawford,  80  id.  19; 
Christian  Collpjre  v.  Hondley,  49  id.  ^41.  In  this  last  case  it  was 
held  that  if  subscriptions  in  aid  of  a  collope  are  made  to  a  finance 
committee,  and  i)ass  by  oj)eration  of  law  to  a  cor])oration  after- 
wards formed,  tlie  complaint  in  an  action  by  the  corporation  to 
recover  a  snbscHption  shonld  aver  that  fact. 

107  Barnes  v.  Perine,  9  Barb.  202;  T.eftwick  v.  Thornton.  IS  Iowa, 
5fi.  The  designated  apent  to  whom  a  subscription  for  stock  in 
a  corpf»rntlon  to  be  formed  is  jiaynblc  may  sue  therefor  in  his 
own  name  as  the  trustee  of  an  ex]»i'e8s  trust.  Tie  Is  the  trustee  of 
the  subscribers  to  collect  the  subscription,  and  is  not  the  trustee 
of  the  corporation  In  any  .sense.    West  v.  Crawford,  SO  Cal.  19. 

40 


§§395-397  l-OKMS   Ol-    (OMIM.AINTS.  314 

§  395.  Against  n  county  for  temporarily  yarding  jail.108 

I-'onii  No.  S2. 
|TiTi,r.  o\-  C'ornT  and  t'ArsK.J 
Till'  plaiiitill"  I'oinphiins,,  and  alk'gcs: 

I.  I  AUogo  defoiulant's  corporate  existence.] 

II.  That  the  jjUiiutilV  performed  services  I'or  the  said  defend- 

nnt  in  guarding  the  jail  of  said   county,  from  the    

i];iv  of 18.  . .,  to  and  including  the day  of 

..". ,  18.  ■• 

III.  That  the  sheriff,  with  the  assent,  in  writing,  of  the 
superior  judge  of  said  county,  employed  plaintiff  to  perform 
said  service  as  a  temporary  guard  for  the  protection  of  the 
county  jail,  and  for  the  safe-keeping  of  prisoners,  and  that 
said  employment  was  necessary. 

IV.  That  said  sherilf  at  the  time  of  employing  said  plaintiff 
promised  plaintiff  that  the  defendant  would  pay  plaintiff  for 
said  services  what  they  were  reasonably  worth,  and  that  said 
services  were  reasonably  worth  the  sum  of dollars. 

V.  [Allege  presentation,  rejection,  and  nonpayment  of  claim 
as  in  preceding  form.] 

VI.  [If  there  are  other  claims  for  similar  services,  performed 
at  different  dates,  allege  them  as  separate  causes  of  action.] 

[Demand  for  Judgment.] 

§  396.   By  a  county. 

Form  No.  83. 

[Title.] 

■ 1 

The  County  of ,  Plaintiff,   I 

against  V 

A.  B.,  Defendant. 

J 

The  plaintiff,  a  corporation,  existing  by  [or  under]  the  laws 
of  this  state,  complains  and  alleges: 

I.  [State  cause  of  action.] 

[Demand  of  Judgment.] 

§  397.  Corporate  character  must  be  alleged.  It  is  an  indis- 
pensable allegation,  in  an  action  brought  by  a  corporation, 
that  it  is  a  corporation,  and  it  results  from  the  logic  of  plead- 

if>«Tlie  foro^oinp;  form  is  founded  on  section  imo  of  the  Cali- 
fornia Penal  Code,  and  is  sustained  in  Hushes  v.  :Mendoeino  County, 
3  West  Coast  Rep.  201. 


315  CORPOKATIOXS.  §  39S 

ing  that  the  opposite  party  may  deny  the  allegation. ^"'^  In 
an  action  to  charge  a  defendant  as  a  municipal  corporation, 
in  Iowa,  it  is  sufficient  to  aver  that  the  defendant  is  a  city; 
and  the  same  allegation  has  been  held  adequate  in  Ohio.^^*' 
Where  municipal  corporations  are  divided  into  certain  classes, 
in  proportion  to  population,  and  it  is  sought  to  charge  a  de- 
fendant as  belonging  to  one  of  such  classes,  an  averment  to 
that  effect  is  necessary.^^^  And  a  complaint  against  a  munici- 
pal corporation  existing  under  a  new  charter  and  name,  for 
work  and  labor  done  for  the  same  town  under  a  former  charter 
and  name,  must  aver  that  the  new  incorporation  is  liable  for 
the  debts  of  the  old."^ 

§  398.  Parties  to  actions  against  municipal  corporations.  In 
actions  by  or  against  municipal  corporations,  towns,  counties, 
public  boards,  and  other  official  bodies,  who  are  the  proper 
parties  to  bring  the  action,  or  against  whom    it    should  be 

i09Oroville,  etc.,  K.  R.  Co.  v.  Plumas  County,  37  Cal.  3.54.  A 
substantial  compliance  with  the  requirements  of  the  statute  will  be 
sufficient  to  show  a  corporation  de  jure,  in  an  action  between  it  and 
a  private  person.  Id.  For  forms  of  complaints  under  the  New 
York  practice,  in  actions  by  or  against  towns,  counties,  supervisors, 
and  other  similar  public  bodies,  see  Carman  v.  Mayor,  14  Abb.  Pr. 
301;  Doolittle  v.  Supervisors,  18  N.  Y.  155;  Roosevelt  v.  Draper,  23 
id.  318;  Hathaway  v.  Town  of  Cincinnatus,  62  id.  434;  Town  of 
Lewis  V.  Marshall,  .50  id.  663;  Town  of  Guilford  v.  Cooley,  58  id. 
116;  Town  of  Chautauqua  v.  Gifford,  8  Hun,  152;  Sutherland  v.  Carr, 
85  N.  Y.  105;  Hagadorn  v.  Raux,  72  id.  .583;  in  Wisconsin,  Cairns  v. 
O'Bleness,  40  Wis.  469;  Beaver  Dam  v.  Frings.  17  id.  398;  Super- 
visors V.  Kirby,  25  id.  498;  Dutcher  v.  Dutcher,  29  id.  651;  Town 
of  Pine  Valley  v.  Town  of  Unity,  40  id.  (>S2:  La  Crosse  v.  Melrose, 
22  id.  4.59;  School  Directors  v.  Coe,  40  id.  103;  Supervisors  v.  Hall, 

42  id.  .59;  in  Missouri,  Lafayette  Co.  v.  Hi.xon,  69  Mo.  .581;  in 
Indiana,  Vanarsdale  v.  State,  (Jo  Ind.  176;  Garner  v.  Kent,  70  id. 
428;  in  ilontana,  Commissioners  v.  Lineberg,  3  Mont.  31;  in  Wash- 
ington, Fire  Engine  Co.  v.  Town  of  Mt.  Vernon,  9  Wash.  St.  142; 

43  Am.  St.  Rep.  827. 

iiostler  v.  Oskaloosa,  41  Iowa,  .3.53;  Mitchell  v.  Treasurer  of 
Franklin  County,  25  Ohio  St.  143;  and  see  Carroll  v.  CenlraliM  Water 
Co.,  5  Wash.  St.  61.3. 

Ill  Rolton  v.  Cleveland,  35  Oliio  St.  319;  the  contrary  is  held  in 
Indiana,  wliere  sudi  fiift  is  Judicially  noticed  as  a  matter  of  his- 
tory. Stultz  V.  State,  65  lud.  492;  so  in  Ftah.  People  v.  Pa^e,  0 
Utah,  3.53. 

ii2Lj-le  V.  Common  Council  of  .\lc.\andria,  1  dancli  C.  C.  473; 
Clearwater  v.  Meredith,  1  Wall.  25. 


§  15HS 


FDKMS    OV    COM  PLAINTS.  316 


bnnu^ht,  iloi>oiuls  largely  upon  the  local  laws  of  each  state,  to 
which  laws  and  the  decisions  thorcundoi"  reference  must  be  had 
for  the  determination  of  the  proper  form  of  action.  In  Cali- 
fornia counties  are  c(U-])oratlons,  but  not  the  people  thereof, 
and  as  such  are  reiiuircd  to  sue  or  to  be  sued  in  the  name  of 
the  county.*^^  Thus,  an  action  on  a  recognizance  given  in  a 
criminal  case  should  be  brought  in  the  name  of  the  county.^^^ 
So,  also,  in  an  action  for  the  recovery  of  money  from  a  default- 
ing treasurer;'*'*  or  to  recover  money  belonging  to  the  general 
county  fund.""  So,  an  action  may  be  maintained  in  the  name 
of  the  county  to  rccov^T  upon  a  note  payable  to  the  county, 
to  the  use  of  the  state  school  fund."^  For  similar  reasons 
the  county  is  the  proper  party  plaintiff  to  object  to  a  contract 
made  by  the  board  of  supervisors  for  building  a  jail;^'^  or  to 
conduct  proceedings  by  mandamus  against  county  officials.^^® 
So,  also,  boards  of  supervisors  can  not  be  sued  in  their  official 
character,  in  ordinary  common-law^  actions,  for  claims  against 
the  public,  county,  or  village,  without  express  statutory  pro- 
vision.'^ And  in  an  action  to  enjoin  a  board  of  supervisors, 
when  it  consists  of  three  members,  at  least  two  must  be  joined 
as  defendants.'^'     But  an  action  to  abate  a  nuisance  caused 

113  Cal.  Pol.  Code.  §§  4000-4003;  Price  v.  Sacramento  Co.,  6  Cal. 
2r)4:  People  ex  rcl  Hunt  v.  Supervisors,  28  id.  431;  Smith  v.  Meyers, 
I'i  id.  33;  Placer  Oo.  v.  Astin.  8  id.  305.  And  the  same  is  tnie  in 
Nevada.  "Waltz  v.  Onnsby  Co.,  1  Nev.  370.  The  right  to  sue  a 
county  is  purely  statutory,  and  the  mode  of  instituting  the  suit 
must  be  strictly  followed.  Monroe  County  v.  Flynt,  80  Ga.  489; 
Mayerhofer  v.  Board  of  Education,  89  Cal.  110;  23  Am.  St.  Rep.  451; 
Whittaker  v.  County  of  Tuolninno,  90  Cal.  100;  Tyler  v.  Tehama 
County,  109  id.  018.  The  Colorado  statute  (Gen.  Stats.,  1883, 
§  T^2^t\  provides,  that  the  name  in  whicli  a  county  shall  sue  or  be 
sued  shall  be  "  The  Board  of  County  Commissioners  of  the  County 
of ."    See  Phillips  County  v.  Churning,  4  Col.  App.  321. 

114  Mendocino  Co.  v.  Lamar,  30  Cal.  627. 

115  Mendocino  Co.  v.  Morris,  32  Cal.  145. 

ii«  Sf)lano  Co.  v.  Neville.  27  Cal.  4G8;  Sharp  v.  Contra  Costa  Co., 
34  Id.  284. 

117  Barry  Co.  v.  McGlothlin,  19  Mo.  307. 

ii»  Smith  V.  Myers,  15  Cal.  33. 

i'»  Calaveras  Co.  v.  Brockway,  30  Cal.  .325.  In  New  York,  actions 
against  connties  sliould  be  brought  against  the  supervisors  as  an 
official  iKiard,  and  not  against  them  individually.  Wild  v.  Super- 
visors. 9  IIf)W.  Pr.  315:  People  v.  Snpervisors.  24  id.  119. 

12«  Hastings  v.  San  Francisco.  18  Cal.  49;  Hedges  v.  Dam,  72  id. 
520. 

121  Trinity  Co.  v.  Mcr'ammon,  25  Cal.  119. 


317  COKPORATIONS.  §  399 

by  the  obstruction  of  a  public  highway  must  be  brought  in 
the  name  of  the  road  overseer,  and  not  in  the  name  of  the 
county.-'^  In  California,  actions  against  counties  may  be  com- 
menced and  tried  in  any  county  in  the  judicial  district  in 
which  such  county  is  situated,  unless  such  actions  are  between 
counties,  in  which  case  they  may  be  commenced  and  tried  in 
any  county  not  a  party  thereto.^^^ 

§  399.  Averment  of  demand  and  presentation  of  claim.  When- 
ever it  is  provided  by  statute  that  in  order  to  render  lia- 
ble a  municipal  corporation,  the  plaintiff's  demand  or  claim 
must  be  presented  to  a  certain  board  or  official  for  allowance, 
the  complaint  must  contain  an  allegation  of  the  facts  consti- 
tuting such  presentation,  and  aver  the  rejection  of  the  demand 
or  claim.-'^  Unless  such  facts  are  alleged,  the  preseutation 
can  not  be  proved.^-^  In  California  it  is  provided  by  statute 
that  "  the  board  of  supervisors  must  not  hear  or  consider  any 
claim  in  favor  of  an  individual  against  the  county,  unless  an 
account  properly  made  out,  giving  all  the  items  of  the  claim, 
duly  verified  as  to  its  correctness,  and  that  the  amount  claimed 
is  justly  due,  is  presented  to  the  board  within  a  year  after  the 
last  item  of  the  account  accrued."^^  In  the  construction 
of  this  statute  it  has  been  held  that  a  substantial  compliance 
therewith  is  essential  to  render  the  county  liable  after  the 
rejection  of  the  claim ;^^  and  that  the  plaintiff  must  aver  all 
the  facts  required  by  the  statute  in  relation  to  the  presentation 
of  his  claim,  and  its  rejection  by  the  board  of  supervisors. 
Merely  averring  that  the  claim  has  been  duly  presented  and 
rejected  is  not  enough. ^^     Where,  however,  a  board  of  super- 

122  San  Benito  Co.  v.  Whitesides,  .51  Cal.  416. 

123  Cal.  Code  Pro.,  §  .394;  see  §  .53,  ante. 

124  Enist  V.  Kunklo,  5  Ohio  St.  r)23;  Ihissell  v.  Mayor,  1  Daly, 
263;  i:ilissen  v.  Ilnlleck,  6  Cal.  386;  McCann  v.  Sierra  County,  7 
id.  12.3;  and  sec  Reining'  v.  City  of  Buffalo,  102  N.  Y.  .308;  .Tones  v. 
Mlnnpapolls.  31  Minn.  2.30;  Tiiompson  v.  Milwaulvce,  69  Wis.  492; 
Billings  First  Xat.  Bank  v.  Custer  Comity,  7  Mont.  464. 

12.^  City  of  Atfliison  v.  Kinjr,  9  Kan.  .550;  but  see  .Taquish  v.  Town 
of  Ithaca.  36  Wis.  108.  where  it  is  held  that  the  failure  to  make 
such  alh'Kations  must  be  taken  advantage  of  by  the  defendant, 
elthfr  by  motion  for  nonsuit  or  otlierwise. 

120  f'al.  Pol.  Code,  §  4f>72.  Sufficiont  vorififntion  of  claim  against 
county.     Sco  lUioda  v.  Alampda  County.  60  Cal.  .523. 

127  BabfOfk  V.  Coodrifli.  47  Cnl.  488. 

128  Rhoda  V.  Alameda  County,  .52  Cal.  350. 


S399 


FOttMS    OF    COMPLAINTS.  318 


visors  ontorod  into  a  c-ontnu-t.  Tor  Iho  erection  of  a  county  jail, 
ihe  work  to  be  i)aiil  I'or  in  installments,  on  the  certilicate  of 
tlio  arehitoet,  an  account  ^nying  the  smu  total  of  an.  install- 
ment, without  •"  all  the  items  of  a  claim,"  is  sullicient.^^  The 
noeessitv  of  presentation  of  a  claim  is  not  confined  to  causes 
of  action  arising  out  of  contract,  hut  includes  cases  arising 
from  lorts,'''^'  and  a  money  judgment.^''^  Unless  a  claim  is 
presented  within  the  time  limited,  it  is  barred,  and  the  super- 
visors have  lu)  jiower  to  allow  it  ai'terwards,^^^  nor  has  the 
legislature  power  to  legalize  an  illegal  claim,  so  as  to  make  it 
binding  on  the  county.^^^  After  the  final  action  of  the  hoard 
in  rejecting  a  claim,  the  plaintiff  must  bring  action,  thereon 
within  six  months,  or  his  demand  is  harred.^^^ 

129  Babcoclv  V.  Goodrich,  47  Cal.  488. 

130  Price  v.  County  of  Sacramento,  6  Cal.  254;  McCann  v.  Sierra 
County.  7  id.  121.  It  is  not  requisite  to  present  a  claim  for  damages, 
caused  by  uegligence  of  the  city  authorities  iu  tlie  repairing  or 
construction  of  a  sewer,  to  the  board  of  supervisors  of  the  city 
and  county  of  Sau  Francisco  before  institutiug  a  suit  upon  it. 
Spaugler  v.  San  Francisco,  84  Cal.  12;  Lehr  v.  Sau  Francisco,  66 
Id.  76;  Bloom  v.  San  Francisco,  64  id.  503. 

131  Alden  V.  Couuty  of  Alameda,  43  Cal.  270. 

132  Carroll  v.  Siebenthaler,  37  Cal.  193. 

133  Domingos  v.  County  of  Saci-amento,  51  Cal.  008. 

134  Cal.  Pol.  Code,  §  4075.  No  action  can  be  maintained  against 
the  city  of  New  Yorlc  till  such  claim  lias  been  presented  to^  the  comp- 
troller. Laws  of  New  York,  1860,  cliap.  379,  §  2;  Russell  v.  Mayor 
of  New  York,  1  Daly,  263.  For  somewhat  similar  statutes  as  to  the 
necessary  demand  before  a  suit  against  the  cities  of  Brooklyn  and 
Buffalo,  respectively,  see  Howell  v.  City  of  Buffalo,  15  N.  Y.  512; 
Hart  v.  City  of  Brooklyn,  36  Barb.  226.  In  New  York,  a  second 
demand  on  the  expiration  of  twenty  days  after  the  rejection  of  the 
claim  is  required,  and  under  that  practice  the  following  allegation 
is  essential.  That  thereafter,  on,  etc.,  and  after  the  expiration  of 
twenty  days,  he  made  a  second  demand  iu  writing,  upon  the  said 

,  for  the  adjustment  of  the  said  claim;  but  the  said has 

hitherto  wliolly  neglected  and  refused  to  make  an  adjustment  or  pay- 
ment thereof.  See  Abb.  I-'orms,  No.  184,  and  authorities  tliere  cited. 
In  an  action  against  the  board  of  supervisors  of  a  couuty  to  recover 
tlie  amount  of  certain  illegal  claims  alleged  to  have  been  unlaw- 
fully allowed  and  ordered  paid  by  them  in  their  official  capacity 
out  of  the  county  treasury,  the  complaint  must  aver  the  nature 
of  the  claims,  in  order  that  it  may  l>e  determined  whether  the  acts 
conii»lained  of  an;  illegal.  A  mere  allegation  that  the  members  of 
the  board  "  misajipropriated,  wrongfully,  unlawfully,  and  illegally 
allowed  and  paid  out,  large  sums  of  money,"  and  that  the  demands 


319  coRPoriATioxs.  §§  -iUO,  401 

§  400.  Instances  of  necessary  allegations  in  actions  by  or 
against  municipal  corporations  —  authority  to  enact  by-laws. 
The  authority  to  enact  may  be  ^verred  in  general  terms.  Where 
a  corporation  is  authorized  to  pass  a  by-law  if  they  find  it 
necessary,  and  they  pass  it,  a  declaration  on  the  by-law  need 
not  aver  the  necessity.^^^  It  is  sufficient  in  pleading  to  aver 
generally,  that  a  contract  sought  to  be  enforced  is  in  violation 
of  some  municipal  ordinance  or  enactment.  When  such  ordi- 
nance or  enactment  is  founded  upon  a  statute,  it  is  not  neces- 
sary to  plead  the  statute  specially.^ 


136 


§  401.  Actions  on  bonds  and  contracts.  In  a  suit  against  a 
municipal  corporation  on  its  bonds,  where  the  complaint  sets 
out  the  bonds;  avers  the  defendant  to  be  a  corporation;  that 
the  corporation  made  and  delivered  the  bonds  on  good  consid- 
eration, under  an  ordinance  passed  by  the  proper  agents  of 
the  corporation,  having  authority  for  that  purpose,  and  that 
defendant  has  failed  to  pay;  it  was  held  that  the  complaint 
shows,  prima  facie,  a  liability  on  the  part  of  the  corporation; 
and  it  was  not  necessary  to  set  out  the  ordinance,  nor  the  vote, 
or  other  proceedings  of  the  corporate  agents,  or  give  any  further 
description  of  the  agents  of  the  corporation.^^'^ 

Where  a  suit  is  brought  on  a  contract  made  by  a  city,  where 
the  laws  regulating  it  require  the  consent  of  two-thirds  of  its 
electors  to  validate  debts  for  the  borrowed  money,  such  consent 
need  not  be  averred  on  the  plaintiff's  part.  If  with  such  sanc- 
tion the  debt  would  be  obligatory,  the  sanction  will,  primarily, 
be  presumed.  Its  nonexistence,  if  it  does  not  exist,  is  matter 
of  defense,  to  be  shown  by  the  defendant.!-''^  In  an  action 
against  the  city  of  St.  Paul,  on  a  contract  for  grading  streets, 
it  is  not  necessary  to  allege  that  an  estimate  of  the  expenses 
was  filed  by  the  commissioner,  nor  that  the  contract  was  made 
with  the  lowest  bidder.^^® 

"  were  wronpfully,  unlawfully  and  withont  authority  of  law  allowed 
and  ordered  paid."  states  only  :i  lejral  conclusion,  and  is  insufficient. 
Hedges  v.  Dnni,  72  Cal.  ;j20. 

13.'.  Stuyvesant  v.  Mayor,  etc.,  of  Now  Vorl<.  7  Cow.  585. 

i86Benian  v.  Tufrnot,  r,  Sandf.  1."):'.;  see  County  of  San  Diego  v. 
Seifcrt.  07  Cal.  TM. 

iBTT'nderliill  v.  Trustees  of  the  City  of  Sonoma,  17  Cal.  172. 
Actions  on  bonds  issued  in  aid  of  i)ublic  improvements.  See 
Tootliaker  v.  City  of  Bouldor,  13  Col.  219. 

13S  Celpclje  V.  City  of  T)uJ)unue,  1  Wall.  (V.  S.)  221. 

139  Nash  v.  St.  I*aul,  8  Minn.  172. 


g  401  i-'OKAlS    OF    CUill'LAmTS.  320 

In  California,  a  ooniplaint  whicli  iiUeges  that  the  pUiiiititr, 
us  a  jusiii'o  1)1'  the  poaco,  pori'onnod  services  at  the  recjuest  of 
the  district  attorney  for  the  county,  in  cases  wherein  tiie  people 
of  the  state  were  plainlill's,  to  the  amount  of  thirty-two  liun- 
dred  dollars,  anil  that  defendant  therchy  became  and  is  liable 
to  ])ay  the  said  sum,  does  not  state  facts  sufficient  to  constitute 
a  cause  of  action  against  said  county. ^'^^  A  complaint  in  an 
action  against  a  county  for  damages  sustained  by  the  location 
of  a  public  highway  over  plaintill''s  land,  laid  out  under  the 
act  of  18G1,  fails  to  state  a  cause  of  action  imless  it  avers  that 
the  plaintiff  had  attempted  to  come  to  an  agreement  with  the 
board  of  supervisors  as  to  the  amount  of  damages  sustained, 
and  could  not  agree  with  the  board  as  to  such  amount.^'**  So, 
a  complaint  in  an  action  against  a  city  for  a  sum  of  money 
claimed  to  be  due  from  it  on  account  of  the  construction  of 
a  sewer,  which  alleges  a  promise  of  the  city  to  pay  for  the 
same,  but  shows  that  the  contract  under  which  the  work  was 
done  did  not  bind  the  city  to  pay  for  the  work,  and  expressly 
provided  that  the  city  should  not  be  liable  for  any  portion  of 
the  expense  incurred  in  the  performance  of  the  .contract,  ex- 
cept as  otherwise  provided  in  the  act  of  March  18,  1885  (Stats. 
1885,  p.  147),  and  docs  not  allege  that  in  order  to  collect  suffi- 
cient money  to  pay  for  the  cost  of  the  work  it  would  have 
been  necessary  to  assess  any  lot,  properly  chargeable  with  such 
cost,  an  amount  exceeding  one-half  of  its  last  assessed  valua- 
tion, does  not  state  a  cause  of  action.^'*^  An  allegation  in  such 
complaint  that  a  sum  specified  is  "  chargeable  to  the  city  and 
payable  out  of  its  municipal  treasury,"  where  the  other  facts 
alleged  do  not  disclose  a  liability  upon  the  part  of  the  city, 
is  to  be  regarded  simply  as  the  statement  of  a  conclusion  of 
law,  which  is  not  admitted  by  a  demurrer.^^^  In  an  action 
against  a  county  for  services  in  doing  the  county 
printing,  a  complaint  is  demurrable  for  want  of  facts, 
when  it  does  not  allege  that  the  work  was  done  by  the 
plaintiff,  or  that  he  had  any  interest  in  the  newspaper  in 
wliich  the  official  notices  were  published. ^^-^  And  in  an  action 
by  a    publisher  to  recover    from  a    county  compensation    for 

140  Minor  v.  Solano  County,  20  Cal.  11,^). 

141  Linroln  v.  Colusa  County,  28  Cal.  (102. 
i42MfBoan  v.  San  Rornardino,  00  Cnl.  18.3 

143  Ifl. 

1«  Rathbun  v.  Thurston  County,  8  Wash.  St.  238. 


331  CORPOKATIONS.  §§  402,  403 

the  publication  of  matter  furnished  to  him  by  a  county  clerk, 
under  a  statute  requiring  county  clerks  to  cause  certain  matters 
to  be  published  in  one  or  more  county  newspapers,  a  complaint 
which  states  that  such  matter  was  furnished  by  the  county 
clerk  for  publication,  but  does  not  aver  that  such  clerk  caused 
it  to  be  published,  or  that  the  newspaper  named  in  the  com- 
plaint was  designated  by  the  clerk  as  the  one  in  which  publica- 
tion was  to  be  made,  is  bad  on  dernurrer.^'*^  A  complaint 
against  the  board  of  education  of  a  city  averring  that  at  the 
defendant's  request  the  plaintiif  made  and  delivered  to  the 
defendant  certain  plans  and  specifications  for  public  school 
buildings,  to  be  built  in  the  city,  which  were  duly  approved, 
accepted  and  adopted  by  the  defendant,  and  that  the  services 
of  the  plaintiff  in  preparing  and  furnishing  the  same  to  the 
defendant  were  reasonably  worth  a  certain  stated  sum  of  money, 
payment  of  which  the  plaintiff  has  demanded  of  the  defendant, 
and  that  the  defendant  has  paid  no  part  thereof,  states  a  suffi- 
cient cause  of  action  upon  an  implied  assumpsit. ^'*'^'  The  com- 
mon counts  may  be  used  in  an  action  of  assumpsit  against  a 
municipal  corj^oration.^*''' 

§  402.  Actions  for  medical  care  of  sick.  A  complaint  in  an 
action  against  a  county  to  recover  for  medical  care  and  treat- 
ment of  sick  persons  fails  to  state  a  cause  of  action  if  it  do 
not  aver  that  the  sick  persons  treated  were  indigent  persons 
and  residents  of  the  county.^*^ 

"WTien  in  an  action  against  a  corporation  for  the  value  of 
medical  services  rendered  its  employees,  the  petition  did  not 
allege  any  promise  by  the  defendant,  or  any  fact  by  which  the 
law  would  imply  a  promise,  it  was  held  defective.  An  allega- 
tion tbat  the  ser\'ices  were  rendered  at  the  instance  and  request 
of  the  agent  of  the  defendant  is  not  an  averment  that  they 
were  rendered  at  the  instance  and  request  of  the  defendant."^ 

§  403.  Action  for  injury  by  negligence.  The  person  or  per- 
sons upon  whom  the  law  may  impose  the  duty  either  to  repair 
a  defect  or  to  guard  the  public  from  an  excavation,  embank- 
ment, or  grarling,  and  also  the  officer  or  officers  through  whose 

145  Refkor  V.  ronmiissionors,  etc.,  11  Mont.  400. 
14«  Brown  v.  Ronrd  of  Kdur-ation,  103  Cal.  r)31. 
147  Id. 

l48.Tolinson  v.  Santa  Clara  Connty,  2R  Cal.  1345. 
149  WellR  v.  Pacific  I{.  R.  Co.,  35  Mo.  164. 

Vol.  T— 41 


S  ^u-l  roKMS   I) I-   COMPLAINTS.  322 

otVic'ial  nogloc't  such  defect  continues,  are  jointly  and  severally 
liable  for  injuries  occasioned  by  their  negiig(ince.^^"  Incorpo- 
rated cities  are  not  liable,  in  California,  for  injuries  sustained 
by  private  inilividuals  caused  by  the  neglect  of  the  city  officers 
in  keeping  its  streets  in  repair,  unless  made  so  liable  by  the 
acts  under  which  tliey  are  incorporated;^^^  nor  for  personal 
injuries  caused  by  the  acts  of  its  officers  at  a  public  hospital;^^^ 
nor  for  injuries  to  property  occasioned  by  the  overflow  of  water 
by  reason  of  the  abutment  of  a  bridge  being  wrongfully  built 
by  the  road  overseer  in  the  channel  of  the  stream.^^^  In 
Illinois,  if  a  city,  in  the  exercise  of  its  right  to  grade  highways, 
creates  a  stagnant  pond  on  a  man's  land,  close  to  his  house, 
it  is  liable  in  damages.^^'*  A  municipal  corporation  has  the 
same  right  to  maintain  an  action  to  prevent  the  unlawful  ob- 
struction of  a  street  as  Avould  the  people  of  the  state,  and  has 
the  right  to  maintain  an  action  to  abate  a  public  nuisance  upon 
a  public  square.^^** 

§  404.  Against  the  trustees  of  a  dissolved  corporation  for  an 
accounting. 

Form  No.  84. 

[Title.] 

The  plaintiff,  on  behalf  of  himself,  as  well  as  of  all  other 

creditors  of  the company  who  may  come  in  and 

contribute  to  the  expenses  of  this  action,  complains  and  alleges: 

I.  That  the company  was  incorporated  on  the 

day  of ,  18 .  . ,  under  the  "  act  "  [title 

of  act]  passed ,  18. .,  and  the  acts  amending  the 

same. 

150  Eustace  v.  Jahns,  .38  Cal.  3;  BaiTett  v.  Railroad  Co.,  45  N.  Y. 
631.  "Where  two  municipalities  are  jointly  chargeable  with  the 
duty  of  maintaininfr  a  bridge  or  highway,  an  action  will  lie  against 
oither  on  an  allegation  of  tlie  joint  duty  and  joint  negligence. 
IT.Twxhurst  V.  Mayor,  etc.,  1.5  Abb.  N.  C.  181. 

I'-i  Winbigler  v.  City  of  Los  Angeles,  45  Cal.  30;  O'Hale  v.  Sacra- 
mento, 48  id.  212;  Kranse  v.  Saeraraento.  id.  221;  Huffman  v.  San 
•Toaquin  County.  21  id.  420;  Tranter  v.  City  of  Sacramento,  61  id. 
271.  In  what  cases  an  action  lies  against  a  village  for  neglect  to 
maintain  sidewallcs,  see  Harrington  v.  Village  of  Corning,  51  Barb. 

1K2  Sherboump  v.  Yuba  County,  21  Cal.  113;  81  Am.  Dec.  151. 
iMCrowell  V.  Sonoma  County,  25  Cal.  313. 
IS*  Nevlns  v.  City  of  Peoria.  41  111.  ,503;  89  Am.  Dec.  392. 
iM«  People  V.  Holladay,  93  Cal.  241;  27  Am.  St.  Rep.  186. 


'S2'6  CORPORATIOXS.  §  405 

II.  [State  cause  of  action.] 

III.  That  on  the day  of ,  18 .  .,  the 

said  corporation  was  dissolved  by  the  judgment  of  the 

court  on  that  day  duly  given  and  made  in  a  certain  proceeding 
in  said  court  then  pending,  wherein  the  people  of  the  state 
of  California,  upon  information  of  the  attorney-general  of  said 
state,  was  plaintiff,  and  the  said  corporation  was  defendant 
(or  that  it  was  dissolved  on  its  own  petition  to  the  county  judge, 
or  otherwise,  as  the  case  may  be). 

IV.  That  the  defendants  above  named  were,  at  and  preceding 
the  date  of  the  dissolution  of  said  corporation,  the  (trustees, 
directors,  or  managers,  etc.,  according  to  the  fact)  of  said  cor- 
poration, and  upon  its  said  dissolution  became  the  trustees  of 
the  creditors  (or  stockholders)  thereof. 

V.  That  the  defendants,  as  such  trustees,  have  received  a 
large  amount  of  money  and  other  property  belonging  to  the 
said  company,  Init  have  refused  to  pay  the  claim  of  the  plaintilt. 

Wherefore,  the  plaintiff  demands  judgment: 

1.  That  the  defendants  account,  under  the  direction  of  the 
court,  for  the  property  received  by  them,  as  aforesaid. 

2.  For  the  payment  to  him  of    dollars,  with 

interest  from  the   day  of   ,  18.  .,  and 

costs,  out  of  the  funds  in  possession  of  the  defendants,  or  which 
they  may  collect. 

3.  That  the  defendants,  without  delay,  proceed  to  the  dis- 
charge of  the  trusts  devolved  upon  them  in  the  j^remises. 

§  405.  Dissolution  by  surrender  by  trustees.  That  the  trus- 
tees have  tlie  power  'to  surrender  tlie  francliise,  after  its  debts 
are  paid,  is  a  proposition  which  admits  of  no  doubt;  and  if 
they  should  do  so  without  having  made  any  disposition  of  its 
property,  there  being  no  stockliolders  or  creditors,  the  personal 
property  of  the  corporation  would  vest  in  the  state. ^°°  Chan- 
cellor Kent  says:  "  The  better  opinion  seems  to  be  that  a 
corporation  aggregate  may  surrender,  and  in  that  way  dissolve 
itself;  bnt  then  the  surrender  must  1)0  accepted  by  the  govern- 
ment, and  be  made  by  some  solemn  act  to  render  it  complete."^'^^ 

i»'''2  Kent's  Com.  3.9(5;  AnRell  &  Ames  nn  Corp.,  §  lU.'S;  People  v. 
President  and  Trustees  of  the  Colletje  of  California    3S  Cal.  106. 

1K«2  Kent's  Com.  311;  The  FeeiOe  of  the  State  of  California  v. 
President  and  Trustees  of  tl'o  Cnlleire  of  California,  .^R  Cal.  IGO; 
Sullivan  v.  Triupfo  M.  f'o..  :;(•  id.   \70.     'I'hat  a  i)rlvate  corporation 


^5?  HH),  -lOT 


FOUMS    OF   COMPLAINTS.  334 


III  AngoU  .^  Amos  on  C'orpovations  (§  773),  after  announcing 
that,  sumo  douht  has  existed  in  England  touching  the  powers 
of  a  inimicipid  c-orj.oration  to, surrender  its  corporate  existence, 
tlu>  author  conchides,  tiuU  '"by  far  the  better  opinion  is,  that 
where  the  sin-render  is  duly  nuide  and  accepted,  it  is  elfectual 
to  dissolve  a  municipal  body.  In  tliis  country,  the  power  of 
a  jirivale  corjioration  to  dissolve  itself  by  its  own  assent  seems 
to  be  assumed  by  all  judges  upon  the  point."^^^ 

§  406.  Ti-ustees,  appointment  of,  in  California.  Upon  the 
dissolution  of  a  corporation,  unless  other  persons  are  appointed 
by  the  legislature,  or  by  a  court  of  competent  authority,  the 
directors  or  managers  of  the  corporation  shall  be  trustees  of 
the  creditors  and  stockholders.^^^ 

§  407.  Powers  and  liabilities  of  trustees.  In  California  the 
trustees  or  receivers  of  a  dissolved  corporation  are  jointly  and 
severally  responsible  to  the  creditors  and  stockholders  to  the 
extent  of  the  property  and  effects  of  the  corporation  in  their 
hands.^^^  Such  trustees  or  receivers  may  sue  and  recover  the 
debts  and  property  of  the  dissolved  corporation.  And  where  a 
common-law  receiver  sues  in  the  name  of  the  corporation,  the 
declaration  must  aver  that  the  suit  is  brought  by  the  direction 
of  the  receiver.^^*^  So,  when  a  receiver  is  appointed,  and  the 
assets  are  assigned  to  him,  even  if  the  corporation  is  still  in 
being.^^^ 

may  dissolve  itself  without  the  consent  of  the  state,  see  Merchant, 
etc.,  Line  v.  Waganer,  71  Ala.  581;  Wilson  v.  Central  Bridge,  9  R.  I. 
590. 

if>7  The  authorities  quoted  in  suppoi*t  are:  Hampshire  v.  Franklin, 
IG  Mass.  8G;  McLaren  v.  Pennington.  1  Paige  Ch.  107;  Enfield  Toll 
Bridge  Co.  v.  Connecticut  Railroad  Co.,  7  Conn.  45;  Slee  v.  Bloom, 
19  .Johns.  4.50;  10  Am.  Dec.  27.3;  Canal  Co.  v.  Railroad  Co..  4  Gill  & 
J.  1;  Trustees,  etc.,  v.  Zanesville  C.  &  M.  Co.,  9  Ohio,  20.3;  Penobscot 
Boom  Co.  V.  Lamson,  16  Me.  224;  33  Am.  Dec.  6,50;  Muram  v. 
Potomac  Co..  8  Pet.  281;  The  People  of  the  State  of  California  v. 
President  and  Tnastees  of  the  College  of  California,  38  Cal.  166. 

1S8  Cal.  Civil  Corle,  §  400;  see  Clark  v.  San  Francisco,  .53  Cal.  306. 

160  Cal.  Civil  Code,  §  400. 

i«>B.9nk  of  Niagara  v.  .Johnson,  8  Wend.  64.5. 

ifii  liank  of  Lyon.s  v.  Demmon,  Hill  &  D.  Supp.  398.  The  appoint- 
ment of  a  receiver  is  an  exception,  to,  be  made  only  in  cases  of 
neglect  of  dutj'  or  abuse  of  power  by  the  directors,  when  required 
for  the  protection  of  the  rights  of  a  creditor  or  stockholder.  Ilave- 
meyer  v.  Supeiior  Court,  84  Cal.  327;  see  State  Investment,  etc., 
Co.  v.  San  Francisco,  101  id.  135. 


335  coRPORATioxs.  §  408 

§  408.   Against   director  of   insurance   company  —  grounds   of 
unlawful  dividends  and  transfers  of  assets. 
Form  No.  85. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  from  the day  of  ,  18 , .,  to 

the   day  of   ,  18 . . ,  the   

company  was  a  corporation  existing  by  virtue  of  the  laws  of 
this  state,  and  authorized  by  law  to  make  insurances. 

II.  That  during  the  said  time  the  said  corporation  made 

insurances  for  plaintiff,  in  the  sum  of   dollars, 

on  two  vessels,  viz.:    dollars  on  a  vessel  named 

the  "  Brother  Jonathan,"  and dollars  on  a  vessel 

named  the  "  Central  America;  "  both  of  which  vessels  became 
total  losses,  within  the  meaning  of  said  policies  of  insurance, 
and  during  the  voyages  for  which  such  insurances  were  made. 
And  that  the  amounts  of  such  insurance  have  not  been  paid. 

III.  That  at  a  meeting  of  the  board  of  trustees  of  said  cor^ 
poration,  at  which  defendant  was  present,  during  the  time 
aforesaid,  the  defendant  with  the  other  trustees  made  dividends 
to  the  stockholders  of  the  said  corporation,  to  a  large  amount, 

to-wit,  to  the  sum  of   dollars,  which  dividends 

were  not  made  from  the  surplus  profits  arising  from  the  busi- 
ness of  said  corporation. 

IV.  That  at  a  meeting  of  the  board  of  trustees  of  said  cor- 
poration, at  which  the  defendant  was  present,  and  when  the 
said  corporation  was  insolvent  and  in  contemplation  of  insol- 
vency, the  defendant,  with  the  other  trustee,  made  conveyances, 
assignments,  and  transfers  of  the  assets  and  property  of  said 
corporation,  with  the  intent  of  giving  a  preference  to  particular 
creditors  of  said  corporation  over  other  creditors  of  said 
company. 

V.  That  the  plaintifF  is,  and  was  at  the  times  of  the  afore- 
said acts,  a  creditor  of  said  corporation  for  the  sum  of 

dollars,  as  aforesaid,  and  the  defendant  then  was  a  trustee  of 
said  company.  That  in  consef|uence  of  the  wrongful  acts  and 
violations  of  law  by  the  defendant,  with  the  other  directors 
of  said  corporation  hereinbefore  mentioned,  the  said  corpora- 
tion, prior  to  said    day  of   anrl  while 

the  plaintifF  was  such  creditor,  and  tho  dofcndant  such  ini^itee, 
became,  and  now  i'j.  whollv  insnlvoiil:  that  jtliiiiitifr  has  sus- 
tained loss  by  roa=on  fhoroof  in  the  sum  of dollars. 

[Demand  of  .TrDfJMEXT.] 


§^-H»'.».  110 


l-OKMS    OK    (.DMl'LAINl'S.  326 


S  409.  Against  directors  of  nn  incorporated  company  for  mak- 
ing unlawful  dividends,  and  distribution  of  stock,  adapted  to 
section  309  of  the  Civil  Code  of  California  —  naming  the  defend- 
ants as  individuals,  not  as  directors. 

l-'onit   No.  S6. 

LTlTl.K.J 

Tho  plaintiir  complains,  and  alleges: 

I.  That  on  the day  of ,  18.  .,  and 

I'rom  that,  day  until  the day  of ,  18.  ., 

,lu.   company  was  a  corporation  existing  under 

the  laws  of  the  state  of  California,  and  doing  business  as  such, 
in  its  said  corporate  name. 

II.  That  on  the day  of   ,  18.  .,  said 

comi>any  made  and  delivered  to  the  plaintiff  its 

promissory  note,  of  which  the  following  is  a  copy  [insert  copy 
of  note];  and  that  said  promissory  note  remains  wholly  un- 
paid, and  there  is  due  to  the  plaintiff  thereon  the  said  sum  of 

dollars,  and  interest  thereon  from  the day 

of   18 .  . ,  at  the  rate  of   per  centum 

per  annum,  all  in  gold  coin  of  the  United  States. 

III.  That  the  directors  of  the  said  corporation  on  the 

tlay  of ,  18.  .,  and  while  the  said  corporation  was 

so  indebted  to  the  plaintiff,  made  and  declared  a  dividend  to 
the  stockholders  thereof  of dollars  per  share,  amount- 
ing in  all  to  the  sum  of dollars,  and  afterwards  paid 

the  dividend  aforesaid  to  its  stockholders  aforesaid,  and  the 
plaintiff  avers  that  said  dividend  was  not  made  from  the  surplus 
profits  arising  from  the  business  of  said  corporation. 

IV.  That  on  the   day  of   ,  18.  .,  the 

said  directors  of  said  corporation  divided  among  and  paid  the 
stockholders  thereof,  the  whole  of  the  capital  stock  of  said 
corporation,  to- wit,  the  sum  of dollars. 

Y.  That  the  defendants,  A.  B.,  C.  D.,  and  E.  P.,  and  each 
of  them,  were,  at  and  during  all  the  times  aforesaid,  directors 
of  said  corporation,  and  assented  to  the  making  of  said  divi- 
dend, and  the  division  and  payment  of  said  capital  otock  as 
aforesaid. 

VT.  That    said    corporation    was,  on   the    day  of 

18...  dissolved.     [State  how.] 

[Demaxd  of  Judgmen-t.] 

§  410.  Essential  averment.  It  should  appear  that  the  plain- 
tiff was  a  creditor  of  the  corporation  at  the  time  the  wrongful 


327  COEPORATIOXS.  §§  411-413 

acts  and  violation  of  law  complained  of  are  alleged  to  have 
been  done  or  committed.^^^ 

§  411.  Grovmds  of  action.  The  complaint  may  set  forth  sev- 
eral grounds,  on  either  of  which  the  defendants  would  be 
liable.^"^  The  statutes  of  the  several  states  differ  so  much  in 
regard  to  the  acts  which  make  directors  or  trustees  of  corpora- 
tions individually  liable  to  stockliolders  or  creditors,  and  the 
grounds  under  each  statute  are  so  numerous,  that  we  can  only 
give  the  foregoing  as  suggestions  to  the  pleader,  who  will,  in 
all  cases,  be  required  to  examine  with  great  care  the  statute 
under  which  he  is  pleading. ^^ 

§  412.  Statute.  But  when  two  different  statutes  severally 
authorize  an  action  upon  a  certain  state  of  facts,  the  arising  of 
such  state  of  facts  constitutes  but  one  cause  of  action;  and  a 
])laintiff  must  elect  which  statute  he  will  proceed  under;  and 
can  not  complain  upon  the  same  facts  in  two  counts,  one  under 
each  statute.^*^ 

§  413.   Individual  creditor  against  individual   stockholder. 
Form  No.  87. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the   company  is  now,  and  since  the 

day  of  IS .  . ,  has  been  a  corporation 

existing  under  and  by  virtue  of  the  laws  of  this  state,  for  the 
purpose  of  mining  for  silver  and  other  precious  metals,  and 
that  the  principal  place  of  business  of  the  said  corporation  is, 
and  since  the  said   day  of  ,  18.  .,  has 

i«2  0j;clen  v.  Rollo,  1,'5  Abb.  V\:  300. 

ifis  Durant  v.  Gardnor.  10  Abb.  Pr.  44.t:  S.  O.,  10  How.  Pr.  04. 

iM  The  dircffors  of  a  mininpr  conioration,  whirli  has  become  in- 
delited  by  af<iiiii'in.!;  its  propei-ty  inonmberod  with  debt  and  by 
iiiakinfr  permanent  improvements  thereon,  are  not  liable  to  the 
e<»r])oration  merely  beeanse  they  declare  and  pay  diviflends  out  of 
the  net  proceeds  of  the  mine  withotit  first  payinj:  the  wliole  of 
sneh  debts,  and  are  not  thereby  Riiilty  of  any  infraction  of  section 
.?00  of  the  r'alifornia  Civil  Code,  prohibiting  the  making  of  divi- 
dends, except  from  the  snn>lu8  profits  nrisinir  fron)  the  business  of 
the  corporation.     Excelsior,  etc..  Min.  Co.  v.  Pierce,  00  Cal.  1.31. 

ifw  Sipperly  v.  Troy  «Sr  Boston  P.  P.  Co.,  0  ITow.  Pr.  83.  Action  by 
stockholder  for  violation  of  trust  on  part  of  directors  of  corporation. 
See  Wlckersham  v.  Crittenden,  03  Cal.  17. 


tj  413  FDU.MS    OF    COMI'l,AlNTS.  328 

boon  in  tlu'  c-itv  ami  louuty  oi'  San  rianciseo,  and  state  of 
California. 

II.  'riiat.  the  capital  stock  of  said   corporation 

is.  and  since  tlie  said    '.  .    day   of    ,   18.  ., 

has  heen  limited  to   shares,  of  the  par  value  of 

dollars  per  share,  making  a  total  capital  of 

d(dlars. 

III.  That  the  whole  of  said  capital  stock  of  said  corporation 
was  and  is  issued  to  and  owned  by  various  persons,  who  are 

now  and  have  been  such  owners  of  said  stock  since  the 

day  of ,  18.  .,  and  that  the  full  amount  thereof 

luis  been  paid  into  said  corporation  by  said  stockholders,  and 
that  all  amounts  paid  in  by  said  stockholders  have  been  ex- 
pended, and  that  nothing  now  remains  to  pay  the  claims  of 
the  creditors  of  the  said  corporation,  and  that  said  corporation 
is  insolvent. 

IV.  That  on  the day  of  ,  18.  .,  the 

said  corporation  gave  its  promissory  note  to   one   A.   B.,   for 

the  sum  of   dollars,  payable  in  gold  coin,  with 

interest  at per  cent,  per  month,  a  copy  of  which  is 

hereby  annexed,  marked  "  Exhibit  A." 

V.  That  said  note  was  afterwards  indorsed  to  the  plaintiif 
by  the  said  A.  B. 

VI.  That  on  the   day  of  ,  18.  .,  at 

,  the  defendant  made  its  acceptance  in  writing 

for  the  sum  of    dollars,  in  gold,  with  interest 

from  date,  also  payable  in  gold,  for  supplies  then  furnished 
by  the  plaintiff  to  said  corporation,  at  its  special  instance  and 
request,  and  delivered  the, same  to  the  plaintiff. 

VII.  That  on  the day  of  ,  18.  .,  at 

the  defendant  made  its  certain  other  acceptance 

in  writing  for  the  sum  of dollars,  payable  to  the 

plaintiff,  in  gold  coin,  with  interest  at  the  rate  of   

per  cent,  per  month,  from  date,  payable  in  gold  coin,  for 
supplies  and  money  then  and  there  furnished  by  the  plaintiff 
to  paid  cor]-)oration,  at  its  special  instance  and  request. 

A'TTT.  That  on  or  about  the day  of 

j8..,    in    the    Superior    Court,    in    and    for    the    county    of 

in   this   state,    the    plaintiff    commenced    an 

action  against  the  said  corporation,  for  the  sum  of 

dollars  principal  and  interest  due  upon  said  note  and  accept- 
ances, and  for  co.^ts  and  damages,  all  in  gold  coin. 


329  COEPOKATIOJ^S.  §  413 

IX.  That  afterwards,  on  the day  of , 

18..,  personal  service  of  summons  and  certified  copy  of  com- 

jjiaint   in   said   action   was   made   on   the   said    

company. 

X.  That  afterwards,  to-wit,  on  the day  of , 

18.  .,  judgment  wa^i  rendered  in  the  said  action  against  the 
said  company,  the  defendant  therein,  and  in  favor  of  this  plain- 
tiff, for  the  full  amount  of   dollars,  in  United 

States  gold  coin. 

XI.  That  afterwards,  to-wit,  on  the day  of , 

18. .,  execution  was  issued  in  the  said  action  upon  said  judg- 
ment by  the  clerk  of  the  said  court,  and  addressed  to  the  sheriff 
of  the  said  city  and  county  of  San  Francisco,  and  which  execu- 
tion was^iereupon  delivered  to  said  sheriff,  and  on  the 

day  of ,  18.  .,  he  returned  the  same  wholly  un- 
satisfied, apd  that  no  property  could  be  found  Avithin  the  said 
county  belonging  to  said   company. 

XII.  That  the  said company  has  not  paid  the 

said  judgment,  and  that  it  still  remains  in  full  force  and  effect 
unsatisfied,  unreversed,  and  not  appealed  from;  and  that  the 
plaintiff  is  the  owner  thereof. 

XIII.  That  ever  since  the    day  of   , 

18. .,  and  also  at  and  during  the  time  when  the  said  debts  and 
liabilities,  for  said  moneys  advanced  and  supplies  furnished, 
accrued  and  were  contracted  and  incurred  by  said  corporation, 
and  the  said  note  given  and  acceptance  made,  the  defendant 
was  a  stockholder  in  the  said  corporation  to  the  amount  of 
shares  of  the  capital  stock  of  said  corporation. 

XIY.  That  the  total  amount  of  indebtedness  of  the  said 
corporation  is dollars. 

XV.  That  the  proportion  of  said  indebtedness,  for  which  de- 
fendant is  liable  to  plaintiff,  is dollars  per  share, 

in  United  States  gold  coin,  amounting  to   the  full   sum   of 

dollars  in  gold  coin,  with   interest  at  the  rate 

of per  cent,  per  month,  and  payable  in  gold  coin,  on 

dollars  of  the  above  amount  sued  for,  and  in- 
terest at  the  rate  of   per  cent,  per  month,  in  gold 

coin,  upon  the  sum   of    dollars,  the  remainder 

of  the  above  amount  sued  for. 

XVT.  That  nltbougb  often  rof|uosted,  still  dofonrlnnt  has 
failed,  neglected,  and  re  fused  to  pay  the  same,  or  any  part 
thereof. 

42 


5;^    111,  -liO  I'OlwMS    01'    COMIM.AIJSTS.  330 

Wlierofoiv.  i)laintiff  demands  judgment  against  the  del'end- 

ant  Tor  the  sum  dT dollars  in  United  States  gold 

coin,  ami  interest  on  the  sum  of dollars,  at  the 

late  of per  cent,  per  month,  compounded  monthly, 

payable  in  like  gold  coin,  and  interest  on  the  sum  of 

ilollars,  at  the  rate  of per  cent,  per  month,  in  United 

States  gold  coin,  and  for  costs  of  suit. 

[Exhibit  "A"  Annexed.] 

§  414.   The  same  —  shorter  form. 

Form  No.  88. 

[Title.  J 
The  plaintiH'  complains,  and  alleges: 

I.  That  at  the  times  hereinafter  mentioned,  the 

company  was  a  corporation  created  by  and  under  the  laws  of 
this  state,  organized  pursuant  to  an  act  entitled  "An  act" 
[title  of  act),  passed ,  18.  .,  and  the  acts  amend- 
ing the  same,  and  supplementary  thereto. 

II.  That  on  the   day  of   ,  18 .  .,  said 

company,  l)y  its  agent  duly  authorized  thereto,  made  its  prom- 
issory note  dated  on  that  day,  a  copy  of  which  is  hereto  an- 
nexed, and  marked  "  Exhibit  A." 

III.  That  on  the day  of IB .  . ,  in  an 

action    in    the    Superior    Court,    in    and    for    the    county    of 

,    to    recover   the    same    from    said    company, 

judgment  was  rendered  by  said  court  against  said  com- 
pany,  in   favor   of  the  plaintiff   for    dollars, 

being    dollars,   the   amount   due   thereon,    with 

interest,  amounting  to dollars,  and  costs. 

IV.  That  execution  thereon  was  thereafter  issued  against 
said  company,  and  returned  wdiolly  unsatisfied. 

V.  That  at  the  time  said  debt  w^as  contracted,  the  defendant 
was  a  stockholder  of  said  company,  holding  stock  therein  to 

the  amount  of dollars,  being shares 

of  the  par  value  of dollars  oflch;  and  that  he 

still  is  such  stockholder  therein. 

[Demand  of  Judgment."] 
[ExTTTBTT  "A"  Annexed.] 

5  415.  Nature  of  stockholder's  liability  for  corporate  debts. 
At  the  common  law,  a  stockholder  was  not  individually  liable 
for  the  debts  of   the    corporation.'"''^     Such  linbilitv  has  been 

1C6 Whitman  v.   Pox.  2.t  Me.  .^^":  Shaw  v.   P.oylnn,   IG  Ind.   3S4; 


331  COEPOKATIOXS.  §  415 

very  generally  created  by  statute  in  the  several  states.     These 
statutes  differ  largely  in  their  details,  and  in  the  extent  of  the 
liability  which  they  impose  upon  the  stockholder.     Some   of 
the  statutes  make  a  stockholder  liable  for  the  debts  of  the 
corporation  to  the  extent  of  the  value  of  the  stock  held  by  him. 
By  others  the  liability  is  limited  to  such  a  proportion  of  the 
debt  or  claim  against  the  corporation  contracted  during  the 
time  he  was  a  stockholder  as  the  amount  of  stock  or  shares 
owned  by  the  stockholder  bears  to  the  whole  of  the  subscribed 
capital  stock  or  shares.     This  latter  is  the  limit  of  the  liability 
imposed  on  the  stockholders  in  California.^^^     In  this  state  the 
Constitution  leaves  to  the   legislature  the   power  to   regulate 
the  liabilities  of  stockholders,  and  to  prescribe  the  rule   by 
which  each   stockholder's  proportion   of   such   debts  shall   be 
ascertained.^^     The  stockholder's  liability  in  California  is  not 
that  of  a  mere  surety.     It  is  primary  and  original.     And  the 
same  identical  act   which  casts  the  liability  on  the  corporation, 
also  casts  it  on  the  stockholder.^'^^     Consequently  such  liability 
is  not  contingent  upon  a  recovery  against  the  corporation/'" 
and  is  not  affected  by  a  suspension  of  the  remedy  against  the 
corporation. ^■^^     Where,  however,  the  corporate  debt  is  satisfied 
in  part,  there  is  also  a  pro  tanto  discharge  of  the  liability  of 
the  stockholders.     Accordingly,  in  an  action  against  a  stock- 
holder for  his  proportion  of  a  corporation  debt  which  had  been 
partially  satisfied  by  a  sale  of  mortgaged  and  pledged  property, 
the  defendant  is  only  liable  for  his  proportion  of  indebtedness 
after  the  payments  have  been  credited."^     Such  liability  is  not 
in  the  nature  of  a  penalty  or  forfeiture,  but  a  liability  arising 

Irpland  v.  Palestine,  etc..  Turnpike  Co.,  10  Ohio  St.  809;  Gray  v. 
Coffin,  9  Cusli.  192;  Nichols  v.  Thomas.  4  INIass.  232;  Vincent  v. 
Chapman,  10  Gill  &  .T.  279;  Nimick  v.  Mingo  Iron  Works  Co.,  25 
W.  Va.  184;  T'nited  States  v.  Knox,  102  U.  S.  422. 

107  Const.,  art.  12,  §  3  (1879);  Cal.  Civil  Code,  §  822;  French  v. 
Tescheniaker.  24  Cal.  'AS;  IMok.  Hill  Canal  Co.  v.  Woodbury,  14  id, 
2G.-»;  Hidwell  v.  Babcock,  87  id.  29. 

16R  lyarrahee  v.  P.iildwin,  8."  C.il.  l.">;  French  v.  Teschemaker,  24 
id.  589. 

lOH  Prince  v.  Lynch.  88  Cal.  ."28;  99  .\ni.  Dec.  427;  Yonng  v.  Rosen- 
baum,  89  Cal.  040;  Sonoma  Valley  linnk  v.  Hill,  .59  id.  107. 

i7or)avidson  v.  Kankin,  84  Cal.  .5o.".;  II.Muan  v.  Coleman,  82  id. 
0.50;  Hi  Am.  St.  Hep.  178. 

171  Young  V.  Ros<'nbaiiiii,  .".9  Ciil.  "'..It;;  I'liiice  v.  Lynch,  8S  id.  528; 
99  Am.  Dec.  427. 

172  San  Jose  Savings  Bank  v.  Pharis.  .58  Cal.  280. 


g  410  l-OKMS  01-  co.MrLAi>;TS.  332 

iium  contract.'"''     H  is  not,  therefore,  barred  by  the  provisiou 
of  the  Statute  of  Limitations  providing  that  an  action  to  en- 
force a  penalty  or  forfeiture  must  be  brought  within  two  years 
after  the  cause  of  action  aeerued.i'-»     In  New  York,  however, 
it  lias  been  hekl  that  tlie  liability  of  stockholders  is  in  general 
an  original  liability,  and   an   action  against  them  is  upon  a 
contract    made    by    them  in  a  qualilled    corporate    capacity. 
\Vhere,  however,  the  corporate  capacity  is  not  thus  qualified, 
the  members  or  otficers  are  not  thus  liable  as  original  or  prin- 
cipal debtors,,  by  reason  of  something  imposed  on  them  by  the 
statute,  and  the  action  must  be  upon  the  statute  to  recover 
a  debt' in  the  nature  of  a  forfeiture.^^^     The  present  Consti- 
tution of  California  limits  the  stockholder's  liability  to  debts 
contracted  by  the  corporation  while  he  occupied  such  rela- 
tion.'^*'    This  is  also  the  construction  that  the  courts  had  put 
upon  the  old  Constitution,  in  holding  that  a  stockholder  did 
not  render  himself  liable  by  becoming  such  for  the  pre-existing 
debts  of  the  corporation.'"     Such  liability  is  not  released  by 
the  stockholder   subsequently   assigning   his   stock.'^^ 

§  416.  Parties  to  the  action.  In  California  any  creditor  of 
a  corporation  may  institute  joint  or  several  actions  against  any 
of  the  stockholders,  and  in  such  action  may  recover  the  pro- 
portion of  the  debt  for  which  each  defendant  is  liable,  and 
have  a  several  judgment  against  each  stockholder,  in  conform- 

173  Coming  v.  MeCullough,  1  N.  Y.  47;  49  Am.  Dec.  287;  Norris  v. 
Wrenschall,  34  Md.  492;  Coleman  v.  White,  14  Wis.  700;  Erickson 
V.  Nesmith,  40  N.  H.  .371;  Dennis  v.  Superior  Court,  91  Cal.  548; 
Kennedy  v.  California  Sav.  Bank,  97  id.  93;  33  Am.  St.  Rep.  163. 
As  to  the  nature  of  this  liability,  see,  also,  Coffee  v.  Williams,  103 
Cal.  ."/);  Hunt  v.  Ward.  99  id.  612;  37  Am.  St.  Rep.  87;  Knowles  v. 
Sanderoock,  107  Cal.  629. 

174  Green  v.  Beckman,  59  Cal.  545;  Moore  v.  Boyd,  74  id.  167; 
Hyman  v.  Coleman,  82  id.  6.50;  16  Am.  St.  Rep.  178. 

175  Bird  V.  Hayden.  2  Abb.  Pr.  (N.  S.)  61. 

176  Const.,  art.  12,  §  3. 

177  Liirrabee  v.  Baldwin,  35  Cal.  156.  In  this  case  it  was  held  that 
to  defi'ruiine  how  much  any  one  stockholder  is  liable  to  pay  to 
a  foriKtrate  creditor,  it  is  necessary  to  find  the  wliole  amount  of 
the  indebtedness  of  the  cor])oration  created  while  he  was  a  stock- 
holder: and  :iny  one  creditor  whose  demand  is  large  enough  may 
have  judgment  for  the  stockholder's  proportion  of  such  corporate 
debts. 

178  Cal.  Civil  Code,  §  322. 


333  COEPO-RATIOXS.  §  417 

ity  therewith.^"^  In  New  York,  iu  conformity  with  the  statu- 
tory provisions,  any  separate  creditor  may  maintain  an  action 
for  the  enforcement  of  his  demand,  although  it  seems  to  be 
conceded  in  that  state  that  a  joint  action  may  be  brought 
against  all  the  stockholders,  for  the  benefit  of  all  the  creditors.^***^ 
In  Ohio,  on  the  other  hand,  it  is  provided  by  statute,  in  con- 
formity with  prior  decisions,  that  the  action  must  be  against 
all  the  stockholders,  and  by  all  the  creditors,  or  by  one  suing 
in  behalf  of  all.^^^  While  in  Missouri  it  has  been  held  that 
if  the  statute  makes  the  stockholders  liable  for  an  amount 
equal  to  the  amount  of  their  stock,  their  liability  is  not  joint, 
but  each  must  be  sued  separately.^**^  If  the  state  is  a  holder 
of  stock,  it  can  not  be  made  a  party  defendant. -^^^  And  where 
any  stockholder  pays  his  proportion  of  any  debt  due  from  the 
corporation,  incurred  while  he  was  a  stockholder,  he  is  re- 
lieved from  any  further  liability  for  such  debt,  and  if  an  action 
has  been  brought  against  him  upon  such  debt,  it  must  be  dis- 
missed as  to  him.^^  One  stockholder,  however,  can  not  re- 
cover against  another  a  debt  due  him  from  the  company.^^^ 
And  as  between  the  corporation  and  its  stockholders,  the  cor- 
porate property  is  the  fund  primarily  liable  for  the  corporate 
debts.i8« 

§  417.  Essential  averments  in  such  action.  An  action  to  en- 
force the  personal  liability  of  stockholders  is,  in  many  cases, 
to  be  considered  as  founded  on  that  vestige  of  the  relation  of 
partnership  between  the  members  of  the  company  which  the 
charter  or  general  act  failed  to  remove.^®'^     In  such  action  the 

170  Id.;  Larrabee  v.  Baldwin.  35  Oal.  156;  and  see  Brown  v. 
Merrill,  107  id.  44G;  48  Am.  St.  Rep.  145. 

180  Weeks  v.  Love.  .50  N.  Y.  508;  IMann  v.  Pentz,  3  id.  415;  Garri- 
son v.  Kowe,  17  id.  4.58;  Brings  v.  Penniman,  8  Cow.  387;  18  Am, 
Dec.  454;  Osgood  v.  Laytin,  5  Abb.  Pr.  (N.  S.)  1. 

181  R.  S..  §  32G0;  Unisted  v.  Buskirk,  17  Ohio  St.  lliJ. 

182  Perry  v.  Turner,  .55  Mo.  418. 

183  Mler.s  V.  Zanesville,  etc.,  Tunipike  Co.,  11  Ohio,  273. 

184  Cal.  Civ.  Code,  §  .122;  Liin:ilM<'  v.  Baldwin.  :i5  Cal.  156. 
18.";  Bailey  v.  Bancker,  3  Hill  (X.  Y.),  188;  .38  Am.  Dec.  625. 
ist?  PriiK-e  V.  Lynch.  .38  Cal.  .528;  90  Am.  Dec.  427. 

187  Corning  v.  McCnllrmgli.  1  X.  Y.  47;  49  Am.  Doc.  287;  Conant 
V.  Van  Scliaifk.  24  Barb.  87;  Bailoy  v.  Bancker,  3  Hill,  88.  For  a 
form  of  coniplnint  against  stofkli()I(l<'r8,  see  ITerkimer  County  Bank 
V.  Furman,  17  Barb.  110;  Witlierhead  v.  Allen,  28  id.  001.  In  an 
action  to  enforce  the  liability  of  stockholders  for  the  debts  of  the 


§417 


FOli.MS   01-    COMrLAINTS.  334 


coini)laint.  must  show  that  tho  defendant  was  a  stockholder 
at  the  time  the  debt  was  eontraeled;^*^**  and  an  averment  to 
this  olTeet  in  the  words  ol'  the  cliarter  is  sutticient;^'**^  othei-wise 
a  judument  which  lias  been  rendered  by  default  will  be  set 
niiide.'"^'  So,  also,  the  grounds  on  which  they  are  individually 
liabk'  must  be  shown.^'-'^  And  in  pleading  the  amount  of  the 
stoekhoUk>r's  liability,  it  must  be  averred  that  such  stockholder 
heUl  an  amount  of  stock  equal  to  the  amount  for  which  he  is 
sought  to  be  held  liable.^'-'^  It  is  not  necessary,  however,  to 
aver  that  the  corporation  is  insolvent.^'*^  Nor  in  an  action  to 
enforce  a  promissory  note  is  it  necessary  to  aver  the  facts  show- 
ing for  what  the  note  was  given.^^'*  In  many  of  the  states, 
before  a  creditor  can  proceed  against  a  stockholder,  he  must 
have  recovered  judgment  against  the  corporation,  and  the  exe- 
cution issued  thereon  must  have  been  returned  unsatisfied. 
Where  such  facts  are  necessary  to  fix  the  stockholder's  liability 
the  complaint  must  allege  their  performance.^'''^  Where,  how- 
ever, the  performance  of  sucli  conditions  precedent  would 
plainly  be  of  no  avail,  as  where  the  corporation  is  insolvent, 

corporation  the  debt  to  be  alleged  is  the  debt  of  the  corporation, 
and  it  may  be  pleaded  in  the  usual  mode.  Knowles  v.  Sandercock, 
107  Cal.  (!29. 

iss  Young  V.  New  York,  etc.,  S.  S.  Co.,  15  Abb.  Pr.  69;  Larrabee 
V.  Baldwin.  .35  Cal.  155:  and  see  Partridge  v.  Butler,  113  id.  326. 

1^9  Fret-land  v.  McCUllongh,  1  Den.  414;  43  Am.  Dec.  685. 

100  Hooker  v.  Kilgour,  2  C.  S.  C.  R.  550;  Kearney  v.  Buttles,  1 
Ohio  St.  362. 

i»i  Ceery  v.  New  York,  etc.,  S.  S.  CO.,  12  Abb.  Pr.  268. 

192  Chambers  v.  Lewis,  16  Abb.  Pr.  443.  In  California,  the  com- 
plaint must  state  the  proportion  which  the  stock  owned  by  the  de- 
fendant at  the  time  the  debt  sned  for  was  incun-ed  bears  to  the 
wh()le  snl>scribed  stock  at  that  time,  or  facts  from  which  such  pro- 
portion may  be  deduced,  othenvise  it  is  insufficient.  Bidwell  v. 
Babcock.  87  Cal.  29.  See,  also,  as  to  sufficiency  of  complaint  in 
sufh  action.  Winona  Wagon  Co.  v.  Bull,  108  Cal.  1;  Partridge  v. 
ButU-r,  113  id.  32n.  It  is  incumbent  upon  the  plaintiff  to  prove  the 
wholo  amount  of  the  stock  outstanding  to  enable  the  court  to  de- 
termine the  liability.     Knowles  v.  Sandercock,  107  Cal.  629. 

103  Parkins  v.  Church,  31  Barb.  84;  Davidson  v.  Rankin,  34  Cal. 
503. 

i9-«  Oebhard  v.  Eastman,  7  Minn.  .56. 

lO-'JConant  v.  Van  Schairk.  24  Barb.  87;  Wright  v.  McCormack, 
17  Ohio  St.  80:  Blake  v.  Hinkle.  10  Yerg.  218:  Cowles  v.  Bartell,  2 
West.  Law  Month.  41;  Hays  v.  New  Baltimore,  etc.,  Turnpike  Co., 
1  Handy,  281. 


335  CORPORATIONS.  §  418 

or  in  the  hands  of  a  receiver,  or  dissolved,  the  necessity  of 
averring  a  recovery  of  judgment  no  longer  exists,  if  the  com- 
plaint contains  other  facts  sufficient  to  excuse  it.^***^  Such  rule 
does  not  prevail  in  California,  as  in  that  state"  the  stockholder's 
liability  is  created  at  the  same  time  as  the  hability  against  the 
eorporation.^^^  Though  a  stockliolder  is  individually  liable  for 
debts  contracted  while  he  was  a  stockholder,  yet  a  judgment 
recovered  against  the  corporation  while  he  is  a  stockholder,  upon 
a  contract  entered  into  before  he  became  such  stockholder,  is 
not  a  contract  within  the  meaning  of  the  act  rendering  such 
stockholder  liable.  And  proof  of  a  judgment  against  a  cor- 
poration does  not  show  when  the  debt  was  contracted. ^^^ 

§  418.  Who  liable  as  stockholders  in  such  action.  The  Civil 
Code  of  California  provides  that  not  only  shall  those  whose 
names  appear  on  the  books  of  the  corporation  be  liable  as 
stockholders,  but  also  every  equitable  owner  of  stock,  althougli 
the  same  appears  on  the  books  in  the  name  of  another;  and 
also  every  person  who  has  advanced  the  installments  or  pur- 
chase money  of  stock  in  the  name  of  a  minor;  and  also  any 
guardian,  or  other  trustee,  who  voluntarily  invests  any  trust 
funds  in  the  stock.  The  pledgee  of  stock  is  not  liable  as  a  stock- 
holder within  the  meaning  of  such  Code.  In  corporations 
having  no  capital  stock,  each  member  is  individually  and  per- 
sonally liable  for  his  proportion  of  the  debts,  and  actions  may 
be  brought  against  him,  either  alone  or  jointly  with  other 
members,  to  enforce  such  liability.     The  liability  of  stockhold- 

196  Shellinpton  v.  Howland,  .'')3  N.  Y.  371;  Lovett  v.  Cornwell,  0 
Wend.  .'iCO:  People  v.  Bartlott,  3  Hill,  570;  Looniis  v.  Tifft.  1(>  Barb. 
.541;  FM-yden  v.  KelloRff,  2  Mo.  App.  87;  State  Ravines  Ass'n  v.  Kel- 
logg. .".2  Mo.  .183;  Paine  v.  Stewart,  33  Gonn.  510;  Merrill  v.  Sufeolk 
Bank.  31  Me.  'u;  .50  Am.  Dec.  CAd;  Hetzel  v.  Tanuoliill  Silver  Min. 
Co..  4  Abb.  N.  C.  40;  Warner  v.  Callendor,  20  Ohio  St.  100. 

»»T  Davidson  v.  Kankin.  34  Cal.  503;  Prince  v.  Lynch,  .38  id.  .528; 
99  Am.  Dec.  427;  Cal.  Civil  Code.  §  322.  As  to  whether  a  stock- 
holder is  lia1)Ie  for  the  cost  of  the  judgment  against  the  company, 
see  Bailey  v.  B.-meker,  3  Hill  (N.  Y.).  188;  38  Am.  Dec.  025;  Andrews 
V.  Mnnay.  0  Abl).  Pr.  8. 

"•«I.arriiliee  v.  Baldwin,  .35  Cal.  1.50;  Miller  v.  White.  .50  X.  Y. 
1.37;  but  see  Hastings  v.  Drew,  70  id.  9.  wliere  sueli  .indgment  was 
said  to  lie  at  least  f,rinia  facie  evideiiee  of  liability;  also.  Corse  v. 
Sandford.  14  I-iwa.  2.''.5;  Tliayer  v.  New  England,  etc.,  Print.  Co., 
108  Mass.  .523;  Milliken  v.  Whitehouse,  40  Me.  527;  Tyng  v.  Clarke, 
9  Hun,  269. 


5j  -H^A  rOUMS    01'    COMI'I.AIJSTS.  336 

ers  oi  I'oivign  ».'i)rj)oiaiious  iluiiig  business  in  California  is  the 
:«auR'  as  that  of  sloclvhoidors  of  domestic  corporations.^"'-^  Prior 
to  the  enactment  of  such  statute  it  was  held  tliat  one  who  never 
accepts,  but  refuses  to  accei)t,  any  stoclc  in  a  corporation,  is  not 
a  sloc-kholder,  even  liiough  the  secretary  cjiters  his  name  in 
the  books  as  sucli,  and  the  stock-book  of  the  corporation  is  not 
admissible  in  evidence  in  an  action  by  a  creditor  of  the  cor- 
poration against  one  claimed  to  be  a  stockholder  for  the  pur- 
pose of  proving  that  he  is  such  stockholder.^oo  And  in  Ohio, 
parties  whose  names  are  nominally  on  the  corporation  books, 
but  who  never  were  actually  owners  of  stock,  their  contracts 
not  having  been  fulfilled,  are  not  liable  as  stockholders.^^ 

§  418a.  Suit  by  creditors  to  reach,  unpaid  subscriptions.  A 
judgment  creditor  who  has  exhausted  his  legal  remedies  against 
a  corporation  may  maintain  an  action  against  its  stockholders 
to  recover,  for  the  benefit  of  all  the  creditors  who  may  desire 
to  come  in  and  be  made  parties,  the  amount  due  upon  unpaid 
subscriptions  for  stock,  w^hen  the  corporation  neglects  or  re- 
fuses to  collect  such  subscriptions.^^  Nor  is  this  equitable  rem- 
edy affected  by  any  remedy  which  may  be  given  creditors 
against  stockholders  by  constitutions,  charters,  general  acts 
of  incorporation,  or  other  statutes,  unless  it  be  taken  away 
expressly  or  by  necessary  implication.^^  It  is  not  necessary 
to  make  all  the  stockholders  defendants  in  such  action.  Any 
individual  stockholder  may  be  sued  for  the  amount  of  his  unpaid 
suliscription,  and  if  he  is  required  to  pay  more  than  his  pro- 
portionate share  of  the  debts  of  the  corporation  his  remedy 
is  against  the  other  stockholders  owing  unpaid  subscriptions 
for  contribution.20'*     The  corporation  should  be  made  a  party 

199  Cal.  Civil  Code,  §  322.  Where  shares  of  the  stock  of  a  corpo- 
ration are  transferred  in  pledge  as  collateral  security  for  the  in- 
dchtedness  of  a  stockholder,  the  pledgee  is  not  to  be  deemed  a 
stockholder  as  respects  personal  liability  for  the  indebte'dness  of 
the  conioration.  Borland  v.  Nevada  Bank.  09  Cal.  81);  37  Am.  St. 
Rep.  32:  see  Baines  v.  Babcock,  0."»  Cal.  .^Sl;  29  Am.  St.  Rep.  158. 

200  Miidtrett  v.  Horrell.  .33  Cal.  2.5. 

201  Wcliniian  v.  Beakirt,  1  C.  S.  C.  R.  2,30. 

2^>2  Baines  v.  Babcock,  9.5  Cal.  .581;  29  Am.  St.  Rep.  158. 

2f».3  Harmon  v.  Page,  62  Cal.  448;  Holmes  v.  Sherwood,  16  Fed. 
Rf'p.  72.5;  3  McCrarj-,  405. 

204  Thompson  v.  Reno  Sav.  Bank,  19  Nev.  103;  3  Am.  St.  Rep. 
797.     A  stockholder  in  an  insolvent  corporation  can  not  avoid  his 


337  coRPORATiOisS.  §  418a 

defendant,  but  is  not  an  indispensable  party,  unless  the  object 
of  the  action  is  to  secure  an  adjudication  of  the  rights  and 
liabilities  of  all  the  parties,  and  a  final  settlement  of  all  the 
aifairs  of  the  company.     And  when  the  action  is  against  a 
single  stockholder,  objection  to  the  nonjoinder  of  the  corpora- 
tion is  waived,  if  not  made  by  demurrer  or  answer.^^     A  com- 
plaint in  such  action,  which  alleges  the  existence  of  the  judg- 
ment debt;  the  insolvency  of  the  corporation;  that  the  sub- 
scribers owe  on  their  unpaid  subscriptions,  and  that  the  exe- 
cution   issuing  on  the  judgment    has    been  returned  wholly 
unsatisfied,  but  which  does  not  show  upon  its  face  that  there 
are  any  other  creditors  of  the  corporation,  states  a  cause  of 
action,  although  it  does  not  state  that  the  proceedings  are  for 
the  benefit  of  all  the  creditors.^"^     And  where  the  complaint 
in  an  action  of  contribution  to  recover  a  stockholder's  propor- 
tionate share  of  a  corporate  debt  paid  by  the  plaintiff,  after 
sufficiently  alleging    the    payment  of    the  whole  indebtedness 
by  the  plaintiff,  adds  as  a  conclusion  from  those  facts,  "  that 
thereby  all  of  the  indebtedness  of  said  corporation  then  sub- 
sisting" to  the  creditor,  and  all  claims  and  demands  of  the 
creditor,  "  were  fully  paid   and   extinguished,"   but  does  'not 
allege  that  the  debt  of  the  defendant  or  of  the  other  stock- 
holders  was  "thereby  extinguished,"  it  is  not  liable  to  the 
objections  that  the  allegations  show  that  the  debt  of  the  cor- 
poration and  of  the  stockholders  was  extinguished.^''' 

liability  for  an  impaid  subscription  upon  stock  held  by  him,  by 
assigninp  it  without  consideration  to  an  insolvent  person.  Manu- 
facturing Co.  V.  Story,  etc.,  Co.,  Ill  Cal.  531. 

205  Potter  V.  Dear,  95  Cal.  578. 

206Tatum  v.  Rosenthal,  95  Cal.  129;  29  Am.  St.  Kep.  »7. 

aoTRedington  v.  CornwcU,  90  Cal.  49. 

Vol.  1—43 


CHAPTER  IV. 

EXECUTOES  AND  ADMINISTKAT0R3. 

§  419.  By  an  executor. 

Form  No.  89. 
[Title.] 


B.,  Executor  of  the  Will  of  Cl 
D.,  Deceased,  Plalutiff, 

against 
John    Doe,    Defendant. 


The  plaintiff,  as  such  executor,  complains,  and  alleges: 

I.  [State  cause  of  action.] 

II.  That  the  said  C.  D.  in  his  lifetime  made  and  published 
his  iast  will,  whereby  he  appointed  the  plaintiff  executor  thereof. 

III.  That  on  the   day  of   ,  18.  .,  at 

,  the  said  C.  D.  died. 

IV.  That  on  the  day  of   ,  18.  .,  at 

,  said  will  was  proved  and  admitted  to  probate, 

in  the  Superior  Court  in  the  county  of ,  in  this 

state. 

V.  That  thereupon,  on  the day  of , 

18..,  letters  testamentary  were  issued  on  the  said  will  to  the 
plaintiff,  by  the  Superior  Court  of  said  county. 

VI.  That  thereupon  the  plaintiff  duly  qualified  and  entered 
upon  the  discharge  of  his  duties  as  executor,  and  that  said 
letters  testamentary  have  not  been  revoked. 

[Demand  or  Judgment.] 

?  420.   By  an  administrator. 

Form  No.  go. 
[Title.] 
The  plaintiff,  as  such  administrator,  complains,  and  alleges: 
I.   [State  cause  of  action  accruing  to  the  intestate.] 

IT.  That  on  the   day  of    ,   18. .,  at 

,  the  said  A,  B.  died  intestate. 


33y  EXECUTORS   AXD    ADillXISTRATORS.  §  421 

III.  That  on  the day  of ,  18 . . ,  let- 
ters of  adniinistration  upon  the  estate  of  the  said  A.  B.  were 

issued  by  the  Superior  Court  of  the  county  of , 

in  this  state,  to  the  plaintiff. 

IV.  That  the  plaintiff  thereupon  duly  qualified  as  such  ad- 
ministrator, and  entered  upon  the  discharge  of  the  duties  of 
his  said  office,  and  that  said  letters  of  administration  have  not 
been  revoked. 

[Demand  of  Judgment.] 

§  421.  Essential  averments  of  representative  capacity.  The 
capacity  of  the  plaintiff'  to  sue  is  independent  of  the  cause 
of  action,  and,  therefore,  in  an  action  by  an  executor  or  admin- 
instrator  to  enforce  a  cause  of  action  on  which  he  is  authorized 
to  sue  as  such,  the  complaint  must  allege  his  representative 
capacity.  No  formal  mode  of  allegation  is  essential,  provided 
the  plaintiff's  right  to  maintain  the  action  is  substantially 
shown,  so  that  issue  may  be  joined  thereon.^  In  conformity 
with  this  rule,  the  complaint  should  state,  in  cases  of  testacy, 
the  death  of  the  decedent,  his  leaving  a  last  will  and  testament, 
the  appointment  therein  of  the  plaintiff  as  executor,  the  pro- 
bate of  the  will,  the  issuance  of  letters  testamentary  thereon 
to  the  plaintiff',  and  his  qualification  and  entry  upon  the  dis- 
charge of  his  duties  as  executor,  and  that  he  is  still  acting  as 
such.2  In  cases  of  intestacy,  the  deatli  of  the  decedent,  with- 
out leaving  a  last  will  and  testament,  must  be  shown,  together 
with  appropriate  allegations  of  the  plaintiff's  appointment  as 
administrator,  his  qualification  and  entry  upon  the  discharge 
of  his  duties  as  such,  and  that  he  is  still  so  acting;  and  this 
is  so,  although  the  plaintiff  may  be  tlie  public  administrator.-'' 
In  the  case  of  either  an  executor  or  administrator,  tho  date, 
place,  and  court    by  whom    letters  were   granted   should    be 

IBank  of  Lowvillo  v.  Edwards.  11  ITnw.  Pr.  '-'Id;  .Tohnson  v. 
Komp.  11  id.  ISO:  President  of  TTanover  Ranlc  v.  Widdiani.  10  id. 
1)7:  Thomas  v.  Cameron.  10  Wond.  ".70;  iralloolf  v.  Mixor,  10  Cal. 
."74:  Barficld  v.  Prire.  40  id.  .'a".:  Beach  v.  KinR.  17  Wend.  197; 
^A'pllf•8  V.  Webster.  0  How.  Pr.  2."1 :  Kintrsland  v.  Stoljes.  .^>S  How. 
Pr.  1 :  English  v.  Roehe.  0  Tnd.  02;  Dnnoan  v.  Dunean,  19  Mo.  308; 
State  V.  ^fatson.  ?,H  id.  489;  Bird  v.  Cotton.  '.7  id.  508;  State  r. 
Patfon.  42  id.  .'.".0:  Tleadlee  v.  Cloud.  .''.1   id.  .".01. 

2Tliomas  v.  Cameron.  10  Wend.  ."79;  Hallrelv  v.  Mixer,  10  Cal.  .^74; 
Barfield  v.  Price.  40  id.  ',?',-.  Kiradi  v.  Derby.  90  id.  G02. 

3  Ketehnm  v.  Mornll,  2  X.  Y.  Lejr.  Olis.  .">8. 


g  .I'^-t  ruKMd   Ob'   COAll'LAl^TS.  340 

slated.'*  11  tliis  itJ  i^^t  done,  the  coiiiplaint  is  bad  ou  de- 
murrer on  I  hat  ground.^  iJy  iJarity  oi  reasoning,,  wiiere  suit 
is  brought  by  au  administrj^tor  during  the  minority  of  the 
exeeulor,  his  powers  beijig  determined  wiien  tiie  executor  at- 
taius  full  age,  the  fact  that  lie  has  not  attained  majority  must 
be  averred.''  Where  the  plaintiil's  representative  capacity  is 
shown,  profert  of  letters  testamentary  or  of  administration  is 
no  longer  necessary.^ 

§  422.  Illustrations  of  sufficient  and  insufficient  allegations. 
In  New  York,  the  word  "as"  is  essential  in  the  title  to 
the  action,  nor  can  it  be  easily  replaced  by  any  other  word. 
Thus,  a  declaration  which  invariably  and  more  than  a  dozen 
times  mentioned  the  plaintiff  as  "  the  said  Sarah,  executrix  as 
aforesaid,"  closing  with  profert  of  letters  testamentary,  was 
held  to  be  fatally  defective  under  the  old  practice.*    In  the 

4  Morrell  v.  Dickey,  1  Jolms.  Ch.  15(5;  Williams  v.  Storrs,  6  id. 
3.")3;  10  Am.  Dec.  340;  Vroom  v.  Van  Horn,  10  Paige  Ch.  550; 
Vermilya  v.  Beatty,  6  Barb.  429;  Warren  v.  Eddy,  13  Abb.  Pr.  28; 
(iulick  V.  Gulifk.  21  How.  Pr.  22;  Robins  v.  Wells,  2G  id.  15;  Emery 
V.  Hildreth,  2  Gray,  228;  Bloom  v.  Burdick,  1  Hill,  134;  Beach  v. 
King,  17  Wend.  197;  Gillett  v.  Fairchild,  4  Den.  80;  White  v.  Joy, 
13  N.  Y.  83;  Forrest  v.  Mayor  of  New  York,  13  Abb.  Pr.  350; 
Christopher  v.  Stockholm,  5  Wend.  36;  Tolmie  v.  Dean,  1  Wash.  T. 
GO;  Dayton  v.  Connah,  18  How.  Pr.  32U;  Shaldon  v.  Hoy,  11  id.  11; 
Barfield  v.  Price,  40  Cal.  535.  But  it  is  not  necessary  to  set  forth 
the  facts  showing  that  the  court  had  jurisdiction.  Munro  v.  Dredg- 
ing, etc.,  Co..  84  Cal.  515;  18  Am.  St.  Rep.  248;  Cohu  v.  Husson,  14 
Daly,  200;  affirmed,  113  N.  Y.  662. 

5  Shaldon  v.  Hoy,  11  How.  Pr.  11.  For  a  form  of  averment  alleg- 
ing appointment,  see  Beach  v.  King,  17  Wend.  197;  Gillett  v.  Fair- 
child.  4  Den.  80.  New  Y'ork  Code  of  Procedure,  section  161,  and  Cali- 
fornia Code  of  Civil  Procedure,  section  186.5,  are  applicable  to  the 
decision  of  the  Surrogate  (Probate  Court)  in  the  appointment  of  an 
administrator.  Anderson  v.  Potter,  5  Cal.  (j3;  Wheeler  v.  Dakin,  12 
How.  Pr.  .537.  For  a  complaint  by  an  administrator,  with  the  will 
annexed  of  a  deceased  judgment  creditor  who  was  resident  of  a 
foreign  state,  see  Wheeler  v.  Dakin,  12  How.  Pr.  537. 

«  Yoaton  v.  Lynn,  5  Pet.  223. 

7  Bright  V.  Currie,  5  Sandf.  433;  Welles  v.  Webster,  9  How.  Pr. 
251. 

«nensohall  v.  Roberts.  5  East,  151,  l.")4;  compare  Merritt  v.  Sea- 
man. G  li  Y.  (2  Seld.)  168,  with  Smith  v.  Levinus,  8  N.  Y. 
474;  and  see.  also,  Gould  v.  Glass,  19  Barb.  185:  Shnldon  v.  Hoy,  11 
How.  Pr.  14;  Ogdensl)urg  Bank  v.  Van  Rensselaer,  6  Hill,  241.     If 


341  EXECUTOKS   AND    ADMIlS'ISTRATOES.  §  4:22 

same  state  a  complaint  averring  that  the  plaintiff  has  been 
duly  appointed  and  qualified  by  the  surrogate  of  New  York, 
to  act  as  the  ''  sole  executor  of  A.  B.,  deceased,"  was  held  not 
sufficient  in  an  action  to  recover  a  demand  due  the  estate  of 
the  plaintiff's  testator;"*^  and  the  allegation  "  duly  appointed  " 
was  held  to  be  not  insufficient,  but  indefinite.-^"  A  complaint 
commencing  "A.  B.,  administrator  of  the  goods,  etc.,  of 
,  deceased,  plaintiff  in  this  action/'  and  contain- 
ing no  other  statement  of  the  fact  of  the  plaintitt"s  appoint- 
ment as  administrator,  does  not  allege  that  he  is  administrator, 
or  show  that  he  prosecutes  in  that  capacity.^^  On  the  con- 
trary, a  bill  alleging  that  there  was  an  instrument  purporting 
to  be  the  last  will  and  testament  of  M.,  deceased,  duly  executed 
and  attested;  that  it  was  admitted  to  probate  as  such  will;  that 
letters  testamentary  were  issued,  and  that  the  executors  took 
upon  themselves  the  execution  of  the  instrument,  sufficiently 
shows  that  the  instrument  was  a  will,  and  that  it  had  been  so 
adjudged  by  the  Surrogate's  Court. ^^  And  so,  also,  a  com- 
plaint which  describes  the  plaintiff  as  an  executor,  and  states 
the  cause  of  action  as  an  indebtedness  due  to  the  plaintiff  as 
an  executor,  and  that  the  money  was  had  and  received  by  the 
defendant  for  the  use  of  the  plaintiff  as  such  executor,  suffi- 
ciently shows  that  the  plaintiff  sues  in  his  representative  ca- 
pacity.^^     iVnd  an  averment  that  letters  testamentary  on,  etc., 

the  plaintiff's  character  is  tlnis  stated  in  the  title,  it  is  not  neces- 
sary to  repeat  it,  but  it  may  afterwards  be  called  "  the  plaintiff." 
Stanley  v.  Chappell,  8  Cow.  235. 

9  Fon-est  v.  Mayor  of  New  York,  13  Abb.  Pr.  350. 

10  Cheney  v.  Fisk.  22  How.  Pr.  238;  People  v.  Walker,  23  Barb. 
305;  People  v.  Ryder,  12  N.  Y.  433.  But  it  is  now  held  that  where 
the  averments  in,  and  the  frame  of  the  complaint  are  such,  as  to 
affix  to  the  plaintiff  a  representative  character  and  standing  In  the 
lltlpatlon,  and  to  show  that  the  cause  of  action,  If  any,  devolved 
upon  him  solely  In  that  character,  the  omission  in  the  title  to  the 
action  of  the  word  "  as,"  V)etween  the  name  of  the  plaintiff  and 
words  descriptive  of  his  representative  capacity,  does  not  i)revent 
him  from  daimlnfj  in  that  cai)acity.  Beers  v.  Shannon,  73  N.  Y. 
292:  Stllwell  V.  Carpenter,  2  Abb.  N.  C.  2:W. 

11  ^rerritt  v.  Seaman,  r,  N.  Y.  UW;  Shaldon  v.  Hoy,  11  How.  Pr. 
11;  Christojiher  v.  Stockholm,  5  Wend.  3');  Worden  v.  WorthinRton, 
2  Barb.  3';8.  Promises  made  to  the  testator  should  not  be  stated 
as  made  to  "  tlie  plaintiff."  Worden  v.  WorthinRton,  2  Barb.  370; 
Christopher  v.  Stockholm,  5  Wend.  3(>. 

l2T\[ason  V.  .Tones.  13  Barb.  401. 

i3Scrantom  v.  Farmers',  etc.,  Bank,  ?,P,  Barb.  ."27. 


M- 


I'UUAlti    UK    tU-MrLAi:ST«.  34^ 


ami  not  bi'l'oiv.  woro  issucil  to,  etc.,  is  sullicient  to  import  that 
uo  oilier  or  jirior  IciU-rs  liad  bocu  issued.^'*  In  Missouri,  u 
petition  stating  tiie  character  in  wiiicli  tJie  plaintiil'  sued,  tlie 
iudebteilness  to  the  intestate,  and  tiie  prayer  for  judgniejit  as 
administratrbL,  was  lield  suilicient  as  showing  lier  right  to  sue.^^ 
In  California,  in  an  action  brouglit  by  an  administrator  who 
lias  been  appointed  after  the  resignation  of  a  former  adminis- 
traliu-,  the  complaint  is  sufficient  if  it  avers  the  issue  of  letters 
to  the  former  administrator;  that  he  qualihed  and  entered  upon 
the  discharge  of  the  trust;  that  he  resigned,  and  his  resignation 
was  accepted  by  the  Probate  Court,  and  that  the  plaintilf  was 
afterwards  appointed  administrator,  and  qualified,  and' that  let- 
ters were  issued  to  him.^'^  And  the  same  eil'ect  was  given  to 
an  averment  that  letters  of  administration  were  issued  on  a 
certain  day,  hy  the  appropriate  court,  to  the  plaintiff,  who  duly 
qualified  as  such  administrator,  and  entered  upon  the  discharge 
of  his  duties  as  such,  and  now^  is,  and  has  been,  continuously 
from  the  date  of  appointment,  such  administrator.^"^  In  that 
state  there  are  only  two  classes  of  administrators,  special 
and  general;  and  no  such  officer  as  an  "administrator  de  bonis 
non  "  is  kno\vn  to  our  law.  When  the  authority  of  a  general 
administrator  is  terminated,  and  a  new  one  appointed,  the  latter 
takes  the  place  of  the  first,  and  succeeds  to  the  office,  clothed 
with  the  same  powers,  and  subject  to  the  same  restrictions;  and 
when  he  invokes  the  action  of  the  court,  he  must  institute  the 
same  proceedings,  and,  so  far  as  he  is  able,  must  make  a  similar 
showing.^**  The  order  for  the  appointment,  the  qualifications 
of  the  appointee,  and  the  issuing  of  letters  to  him  thereon, 
are  all  necessary  proceedings  to  invest  such  appointee  with  the 
office  of  an  administrator.  The  appointment  is  in  fieri  until 
the  appointee  has  qualified  and  received  his  letters.^^ 

14  Benjamin  v.  De  Brett,  1  Den.  151. 

IB  Dunean  v.  Duncan,  19  Mo.  3G8. 

i«Liiras  V.  Todrl.  28'cal.  182. 

17  >rfrn1r>hPon  v.  Weston,  H.")  Cal.  37.  The  allef^ation  of  the  repre- 
sentative rapar-ity  of  a  sul)stitutecl  exocutor  or  administrator  may 
l>o  made  J)y  way  of  amended  complaint,  and  need  not  be  pleaded 
by  siipplemontal  complaint,  nor  need  the  allegation  be  so  full  as  in 
an  original  complaint  by  an  executor.  Campbell  v.  West,  93  Cal. 
653. 

iSHaynes  v.  Meeks,  20  Cal.  2P8. 

19  Estate  of  Ilannlton,  ?A  Cal.  4G4 


343  EXECUTOKS   AND    ADMINISTRATOKS.         §§  423-425 

§  423.  Action  by  foreign  administrator  or  executor.  Except 
as  modified  by  the  statute,  the  authority  of  an  executor  or 
administrator  is  limited  to  the  state  or  country  in  which  he 
receives  his  authority.  Consequently  he  is  not  authorized  to 
maintain  an  action  in  his  representative  capacity  outside  oi 
such  state.  If  objection  is  not  raised  to  the  plaintiff's  capacity 
to  sue,  either  by  answer  or  demurrer,  it  is  waived.^  But  it 
has  been  held  that  a  plaintiff  may  maintain  a  suit  in  the  United 
States  Circuit  Court,  as  a  citizen  of  ^Nlaine,  in  his  character  of 
administrator  if  he  has  taken  out  his  letters  in  Xew  Hamp- 
shire.^ 

§  424.  Commencement  of  complaint  by  executor  or  adminis- 
trator suing  in  his  own  right. 

For)n  Mo.  pi. 

[Title.] 
The  plaintiff  complains,  as  administrator  of  the  estate   [or 
executor  of  the  will]  of  A.  B.,  deceased,  and  alleges: 
I.  [State  cause  of  action.] 

[Demand  of  Judgment.] 

§  425.  Executor  or  administrator,  when  may  sue  in  own  name. 
Contracts  made  by  an  executor  or  administrator  subsequently 
to  the  death  of  the  deceased,  although  affecting  the  assets  of 
the  estate,  may  be  sued  on  liy  such  executor  or  administrator 
in  his  personal,  and  not  in  his  representative  capacity.  The 
action  need  not  necessarily  be  in  such  form,  as  the  executor 
or  administrator  has  an  election  whether  to  sue  personally  or 
in  a  representative  capacity.^^     Thus,  an  executor  or  admin- 

20  Ham  v.  Henderson,  50  Cal.  .''.(iT;  Caslinian  v.  "Wotxr,  0  Hun,  .520; 
Robbins  v.  Wells,  18  Abb.  Tr.  101;  Connor's  Adm'x  v.  Paul,  12  Bush. 
144:  Duncan  v.  Whedbee,  4  Col.  14.3;  MuUin's  Appoal,  40  Wis.  1.54; 
Harte  v.  Ilourliin,  .50  Ind.  327;  Wright  v.  Wright.  72  id.  149;  S.  W. 
Hallway  v.  Taulk,  24  Ga.  370;  Dougherty  v.  Walker,  15  id.  444; 
Rrookshlre  v.  Dubose,  2  .Tones  Eq.  270;  Rucks  v.  Taylor.  40  Miss. 
.500;  Palmer  v.  Ins.  Co.,  84  X.  Y.  07;  and  see  Matter  of  Webb,  11 
Hun,  124;  .Tolins(.n  v.  Wallis,  112  N.  Y.  2,30;  8  Am.  St.  Rep.  742. 

21  Carter  v.  Treadwell,  3  Story  C.  C.  25.  If  tlie  plaintiff  who  has 
recovered  a  juOfrnirnt  as  .ndininistrator  in  one  jurisdiction  brings 
an  action  on  the  jud^^inent  in  anotlier  .iurisdiction.  naniint:  himself 
as  administrator  in  llie  latter  action,  tlie  averment  may  be  rejected 
as  RurplusaKe.    Lewis  v.  Adams,  70  Cal.  40:5;  .59  Am.  Rep.  423. 

22  Wolff  V.  Blaird.  123  111.  .585;  5  Am.  St.  Rep.  .5(;5;  Mowry  v. 
Adams,  14  Mass.  .327  Wiiere  the  cause  of  .-u-tion  allefre<l  in  the 
complaint  is  based  upon  a  specinl  contract  with  the  administrator 
to  collect  a  draft  for  the  iise  of  the  estate,  there  can  be  no  recovery 


K  4.^0  rOli.MS    Ol'    ( D.MI'LAINTS.  344: 

istrator  may  fuo  in  his  own  luuiie  to  recover  back  money  ol' 
the  estate  paid  liv  iiiisiake;-^  or  on  a  note  payable  to  him  as 
representative;-^  or  to  bearer;-'^  or  to  him  individnally  for 
money  duo  the  estate;^  or  I'oT  the  price  of  property  sold  by 
him  as  representative r"  or  on  a  judgment  obtained  by  hini;^^ 
or  for  the  wrongful  conversion  of  the  property  of  the  estate,--^ 
although  such  conversion  was  made  prior  to  his  appointment. 
In  such  case  he  has  a  special  property  in  the  goods  taken  suffi- 
cient to  support  the  action.  N^o  demand  is  necessary  if  such 
taking  were  toi'tions.^'^ 

§  426.   Against  an  administrator  or  executor.3i 

Form  No.  <)2. 

[Title.] 


A.  B.,   Plaintiff, 
against 

O.  D.,  Administrator  or  (Executor)   K. 
of  the  Estate  of  E.  F.,  Deceased, 
Defendant. 


The  plaint  ill'  complains,  and  alleges: 

I.  [State  a  cause  of  action  against  the  decedent.] 

II.  [Allege  death  of  decedent,  and  defendant's  appointment 
as  administrator  or  executor,  as  in  preceding  forms,] 

upon  the  tlieory  of  a  constructive  involuntary  trust,  as  to  wliich 
no  allegations  are  made  in  the  complaint,  and  which  are  not  suffi- 
ciently proved  by  the  evidence.  Gray  v.  Farmers',  etc.,  Bank,  105 
Cal.  60. 

23  Rosera  v.  "Weaver.  AVrinlit.  174;  (Julke  v.  Uhlis,  5.3  How.  Pr. 
434. 

24  Rittenhouse  v.  Ammerman,  (VI  Mo.  197;  Merritt  v.  Seamen,  fi 
N.  y.  K;S;  Carleton  v.  Byin^ton,  17  Iowa,  579:  Kalkhoff  v.  Zoehrlaut, 
40  Wis.  427. 

2r.  Holcoml)  v.  Beach,  112  Mass.  450. 

20Mfnelioe  V.  Slater,  .50  Ala.  4.31;  Walt  v.  Walsh,  10  Heisk.  314; 
Cocker  v.  Cmker.  2  Mo.  App.  451;  Blankenship  v.  Nimmo,  50  Ala. 
506. 

27  Layfofk  v.  Oleson,  00  111.  .30. 

2sPafre  v.  Cravens.  .3  Head.  .38:^:  limit  v.  I.isle,  G  Yerg.  417. 

29  Munch  V.  Willinnison,  24  Cal.  107. 

•*«)  Ham  V.  Henderson,  .50  Cal.  .3fi7. 

31  S«'e  §  102,  an\e.  In  actions  ajrainst  executors  or  administrators,. 
tlie  foinplaint  nrod  not  alh'Re  the  faots  showing  Iiow  the  defendants 
iK'f-ame  invested  with  tlieir  representative  character.  Wise  v. 
Williams.  72  Cal.  .544. 


345  EXECUTORS   AXD    AD5IIXISTRAT0ES.  §  427 

III.  That  said  defendant,  as  such  executor  [or  administrator], 

in  pursuance  of  an  order  of  the  Superior  Court  of 

county,  caused  a  notice  to  the  creditors  of  said  deceased  to  he 
published  in ,  the  same  being  the  newspaper  desig- 
nated by  said  court,  requiring  all  persons  having  claims  against 
said  deceased  to  exhibit  them,  with  the  necessary  vouchers  to 
the  said  executor  [or  administrator]  at  [specify  the  place],  the 
same  being  specified  therein  as  his  place  of  business,  within 

months  after  the  first  publication  of  said  notice;  that 

said  notice  was  first  published  on  the day  of , 

18.. 

lY.  That  on  the   day  of    ,  18.  .,  at 

,  the  claim  hereinbefore  set  forth,  verified  by  the 

oath  of  the  claimant,  and  upon  which  this  action  is  founded, 
Avas  duly  presented  in  writing  by  the  plaintiff  to  the  defendant, 
as  such  administrator  [or  executor],  for  allowance.  And  that 
the  same  was  by  him,  as  such  administrator  or  executor,  rejected, 

on  the day  of 18.  .      That  a  copy  of 

said  claim  as  presented  is  hereunto  attached  and  made  a  part 
of  this  complaint. 

[Demand  of  Judgment.] 

§  427.  Action  against  executor  or  administrator  on  new 
promise.  Whether  an  executor  or  administrator  can,  by  a  new 
promise,  revive  a  debt  barred  by  the  Statute  of  Limitations, 
depends  upon  the  special  statutes  of  the  different  states. 
Where  thei-e  is  no  limitation  upon  the  power  of  the  executor 
or  administrator  imposed  by  statute,  it  has  been  held  that  a 
new  promise  would  avoid  the  statute.^^  In  South  Carolina  it 
has  been  hold  that  before  the  bar  of  the  statute  is  conijilete, 
the  administrator  may  revive  the  debt  by  au  aclcnowledginont 
or  promise.'^"*'  In  another  case  in  that  state  it  was  held  that 
a  promise  by  the  executor  would  revive  a  debt  barred  l)y  the 
statute  at  the  time  of  ilio  acknowledginerit  or  prouiise.  if  not 
l)arred  at  the  death  of  the  testator.'''*  In  California,  the  allow- 
ance of  a  claim  against  an  estafo.  after  it  is  barred  Ity  the 
statute,  is  prohibited.^''     I'ut  a  widow,  executrix  of  an  estate 

•12  Exnr-utors  of  Xionif<>\vif/,  v.  F.ai-llptt,   1.".  Oliio.   271;   Brown  v. 
Anderson,  IP.  ^fass.  201. 

33  Wilson's  Adni'r  v.  Wilson,  1   M.Mullnn'R  E(|.  .''.20. 

34  Pearpo  v.  Ex'rs  of  Ziinmornian,  ITaiT>.  ■'^of). 

an  Pofle  Civ.  Pro.,  §  1400.     T'pon  this  snb.ieot'  eenpi'ally.  sc^e  Dawos 
V.  Shed.  1;j  Mass.  R,  and  nofo,  p.  S;  8  Am.  Dec.  80;  Thompson  v. 

41 


<  4v'S  1  OK.M8    OF    (  O.MIM.AINTS.  34G 

oi  Ikt  ilocrasod  hiisbaiuL  who  has  an  intrust  in  the  same,  who 
gives  her  own  note  for  a  UelU  oi'  her  husband,  which  is  barred, 
undiT  the  niistakon  opinion  that  it  is  still  binding,  will  be 
liold  personally  liable  Iherewn.^^' 

S  428.  Presentation  of  claims  against  estate.  Statutes  have 
been  passed  iu  most  ol'  the  states  which  limit  the  absolute 
right  of  the  creditors  of  a  deceased  debtor  to  proceed  against 
the  estate.  These  statutes  dili'er  greatly  in  their  details,  but 
their  general  cilect  is  to  require  the  creditor  to  present  his 
claim  to  the  executor  or  administrator,  within  a  certain  time, 
for  allowance.  If  not,  such  claim  is  forever  barred.  In  Cali- 
fornia the  executor  or  administrator  is  required  to  publish  no- 
tice to  creditors  to  present  their  claims  against  the  estate.  If 
the  value  of  the  estate  exceeds  ten  thousand  dollars,  such  time 
is  limited  to  ten  months  after  the  first  publication;  otherwise 
to  four  months.  All  claims  arising  upon  contract,  whether 
the  same  be  due,  not  due,  or  contingent,  must  be  presented 
within  the  time  limited  in  the  notice,  and  any  claim  not  so 
presented  is  barred  forever.  Where,  however,  it  is  made  to 
appear  by  the  affidavit  of  the  claimant,  to  the  satisfaction  of 
the  court,  or  a  judge  thereof,  that  the  claimant  had  no  notice, 
by  reason  of  being  out  of  the  state,  it  may  be  presented  at  any 
time  before  a  decree  of  distribution  is  entered .^^     Every  claim 

Brown.  16  Mass.  171;  Ross  v.  Ross.  6  Hun.  80;  Estate  of  Hidden, 
23  Cal.  362. 

:'■<■>  INIuU  V.  Van  Trees,  .50  Cal.  547. 

•".Tfode  Civ.  Pro.,  §§  1490-1493;  Estate  of  Taylor,  16  Cal.  434; 
Gullerton  v.  ]Mead,  22  Cal.  96.  Necessity  of  presentment  of  claims.— 
See  Cowpill  v.  Dinwiddie,  98  Cal.  481;  McDonald  v.  McElroy.  60 
Id.  484,  495:  Hibernia,  etc..  Loan  Soc.  v.  Conlin.  67  id.  178;  In  re 
Smith.  108  id.  115;  Dodsou  v.  Nevitt,  5  IMont.  .518.  Since  the  amend- 
ment of  1880  to  section  1493  of  the  Califoniia  Code  of  Civil  Pro- 
cedure, all  contingent  claims  which  are  provable  and  payable  at  any 
time  must  be  presented  within  the  time  limited  in  the  notice  to 
creditors,  wr  such  claims  are  baiTed  forever,  although  tlie  amoimt 
of  tlio  claim  can  not  be  ascertained  within  the  ordinary  period  of 
administration.  Verdier  v.  Roach.  9(5  Cal.  467;  com])are  Hibernia. 
etc.,  Soc.  V.  Wackenrender.  99  id.  .506,  .507.  See,  generally,  as  to 
time  of  presentment,  Estate  of  Swain.  67  id.  fS7;  .Tanin  v.  Browne. 
.59  id.  .37:  Tyler  v.  Mayre,  95  id.  160:  RroAvning  v.  Browning,  3  N. 
Mex.  371.  A  claim  may  l)e  presented  before  tlie  notice  to  creditors 
is  published,  and  such  presentation  is  good.  McCann  v.  Pcnnie. 
100  Cal.  .547.  T'ndor  the  statutes  of  Nevada  it  is  not  a  sufficient 
presentation  of  a  claim  to  hand  it  to  the  "  attorney  for  the  estate," 


347  EXECUTORS   AXD   ADItllXISTRATOES.        '  §  438 

wliich  is  due  when  presented  to  the  executor  or  administrator 
must  be  verified  by  the  affidavit  of  the  claimant,  or  some  one 
in  his  behalf,  to  the  effect  that  the  amount  thereof  is  justly 
due;  that  no  payments  have  been  made  thereon  which  are  not 
credited,  to  the  knowledge  of  the  affiant.  If  the  claim  be  not 
due  when  presented,  or  be  contingent,  the  particulars  of  such 
claim  must  be  stated.^^  Upon  the  presentation  of  a  claim 
the  executor  or  administrator  must  indorse  thereon  his  allow- 
ance or  rejection,  with  the  date  thereof.  If  he  allows  the  same, 
it  must  be  presented  to  the  judge  for  his  approval,  who  must 
indorse  thereon  his  allowance  or  rejection.  If  the  executor  or 
administrator,  or  the  judge,  refuse  or  neglect  to  indorse  such 
allowance  or  rejection,  for  ten  days  after  the  claim  has  been 
presented  to  him,  such  refusal  or  neglect  may,  at  the  option 
of  the  claimant,  be  deemed  equivalent  to  a  rejection  on  the 
tenth  day.  If  the  claim  be  presented  to  the  executor  or  ad- 
ministrator before  the  expiration  of  the  time  limited,  it  is  a 
sufficient  presentation,  although  not  acted  upon  until  after 
the  expiration  of  such  time.^*^  After  the  allowance  of  a  claim 
by  the  executor  or  administrator  and  the  judge,  the  statute 
provides  that  it  shall  be  filed  in  court  within  thirty  days,  and 
thereafter  it  ranks  among  the  acknowledged  debts  of  the  estate 
to  be  paid  in  due  course  of  administration.'*"  The  foregoing 
provision,  so  far  as  the  time  in  which  the  filing  of  an  approved 
claim  is  concerned,  has  been  held  merely  directory.'*^  If  the 
claim  be  founded  on  a  bond,  bill,  note,  or  other  instrument, 
a  copy  of  such  instrument  must  accompany  the  claim.  If  the 
claim  has  been  secured  by  mortgage  or  other  recorded  lien,  it 
is  sufficient  to  describe  the  mortgage  or  lien,  and  refer  to  the 
date,  volume  and  page  of  its  record. ''^  If  the  claim  is  rejected, 
either  by  the  executor  or  administrator,  or  judge,  suit  must 

at  If-ast  not  without  showing  that  it  ar-tnally  rcnclicd  tlio  executor 
or  administrator  witliin  the  propor  time  for  the  presentation  of 
flaims.  DouL'Iass  v.  Folsoni.  21  Nov.  441;  compare  Roddan  v.  Doane, 
02  f'.'il.  ;"..".;  I'.ollintrcr  v.  Manninfr,  79  id.  7. 

i«  rode  r'iv.  Pro..  §  1404.  Necessity,  and  sufliciency  of  affidavit. 
Warren  v.  McfJill,  10?,  C'al.  l.""*.".;  Tico  v.  De  la  fJuerra,  18  id.  422; 
Hall  v.  Superior  f'onrt.  C>U  id.  70:  ^^■i^deI•  v.  Hendricks,  50  id.  4G4; 
In  re  nildelirandf.  02  id.  4:W. 

80  Code  Civ.  Pro..  §  1490. 

40  Td..  S  1-107. 

«  Willis  v.  Farley.  2-1  Tol.  .'.01;  Kstalf  <.f  Selu-oedcr.  40  id.  :^(H. 

42  Code  Civ.  Pro.  §  1407;  see  Estate  of  Kibl^e,  57  Cal.  407;  Estate 
of  Calland.  02  id.  203. 


S  ^\>\)  I'OU.MS    OF    COMl'LAINTS.  348 

be  brought  thoivou  wiiliiu  ihrcc  inoiillis  ai'ler  ilic  date  ol  ita 
ivjoetiou,  il"  it  bo  thru  dnc,  or  within  two  months  after  it 
becomes  due,  otherwise  it  is  barred  i'orever."*'*  The  time  dur- 
ing which  there  is  a  vacancy  in  the  administration  is  not  in- 
cluded in  such  limitation."*"*  ii'  an  action  is  pending  against 
the  decedent  at  the  time  oi'  his  death,  the  plaintiii'  must,  in 
like  manner,  present  his  claim  for  allowance,  authenticated  as 
in  other  eases;  and  no  recovery  can  be  had  in  the  action  unless 
proof  be  made  of  such  presentation.^^  If  the  defendant  dies 
after  verdict  against  him,  and  before  judgment,  the  claim  need 
not  be  presented.  The  proper  practice  in  such  case  is  to 
direct  the  entry  of  a  judgment  against  him  by  name,  and  then 
suspend  all  further  proceedings  until  the  substitution  of  an 
executor  or  administrator.'"^  Such  judgment  is  not  a  lien  on 
the  real  estate  of  the  decedent,  but  is  payable  in  due  course  of 
administration."*^  An  objection  that  such  claim  "was  not  pre- 
sented to  the  administrator  or  executor,  after  the  death  of  the 
defendant,  must  be  made  in  the  court  below.  It  comes  too 
late  if  made  in  the  appellate  court  for  the  first  time.^* 

§  429.  The  same  —  further  construction  of  California  statutes. 
The  words  "  claimant  "  and  "  claim  "  and  "  demand,"  as  used 
in  the  California  statutes,  are  synonymous,  and  have  reference 
to  such  debts  and  demands  against  the  decedent  as  might  have 
been  enforced  against  him  during  his  lifetime,  by  personal 
action,  for  the  recovery  of  money,  and  upon  which  only  a 
money  judgment  could  have  been  rendered.^^  They  do  not 
include  expenses  incurred  in  the  administration,^*^  or  the 
family  allowance,*^^  as  the  object  of  the  statute  is  mainly  to 

43  Co<le  Civ.  Pro.,  §  1498;  Benedict  v.  Hagfjin,  2  Cal.  385;  Hall  v. 
Smith,  19  id.  STr,  Rice  v.  liislceop,  M  id.  224. 

44  Danfc'lada  v.  De  la  GueiTa,  10  Cal.  386;  Smith  v.  Hall,  19  id.  85. 

45  Cotle  Civ.  Pro.,  §  1.502.  See  this  section  constnied  in  Hibernia, 
etc..  Soc.  V.  Wackenrender,  99  Cal.  503. 

46  Estatp  of  Page,  50  Cal.  40. 

47  Code  Civ.  Pm..  §  1506;  Dral^e  v.  Foster,  .52  Cal.  22.5. 
4«  Drake  v.  Foster,  52  Cal.  225. 

•"nOray  v.  Palmor.  9  Cal.  616;  Fallon  v.  Butler,  21  id.  32;  Estate 
of  McClausland,  .52  id.  568;  and  see  Toulouse  v.  Burkett,  2  Idaho, 
170;  Lusk  v.  Patterson,  2  Col.  App.  306;  Weil  v.  Clark's  Estate,  9 
Orep.  387. 

^>  Keek  v.  Cherke.  6  Cal.  666. 

•''1  Estate  of  McClausland,  52  Cal.  .568.  Payment  of  funeral  ex- 
penses from  estate  of  deceased,  see  Van  Emon  v.  Suiierior  Court, 
76  Cfll.  589;  9  Am.  St.  Pep.  2.58;  I,i  re  Weringer,  100  Cal.  345. 


349  EXECUTORS   AND    ADMIXISTRATORS.  §  429 

prevent  estates  from  being  squandered  or  wasted  in  unneces- 
sary litigation;^^  nor  an  assessment  for  public  improvements 
made  after  the  death  of  the  decedent.^^  And  in  an  action  of 
accounting  between  a  surviving  partner  and  the  representative 
of  the  deceased  partner,  tlie  surviving  partner  is  entitled  to  an 
allowance  for  sums  drawn  by  the  deceased  partner  from  the 
partnership  assets  in  his  lifetime,  although  the  claim  for  the 
sum  so  drawn  has  never  been  presented  for  allowance  and  ap- 
proval,^^  as  the  claim  for  such  advances  need  not  be  presented 
until  the  partnership  affairs  are  wound  up.^^  Nor  need  a 
claimant  of  specific  property  present  a  claim.^*^  Claims  which 
are  necessary  to  be  j^resented  may  be,  before  notice  to  creditors 
is  published.^^  In  Ohio  a  formal  presentation  of  a  claim, 
which  the  administrator  had  previously  seen,  is  not  necessary 
when,  on  being  requested  to  allow  it,  he  refuses,  the  claim 
being  then  present  in  the  owner's  pocket.^*  A  refusal  to 
allow  a  claim  in  that  state  is  equivalent  to  a  rejection,^^  but 
the  requirement  of  presentation  does  not  apply  to  proceedings 
to  revive  an  action  before  judgment  against  the  personal  repre- 
sentative.®** In  Missouri  a  defendant  in  an  action  by  an  ad- 
ministrator need  not  aver  presentation  of  a  set-off.®^  Nor,  in 
New  Jersey,  need  an  assignee,  whose  assignor  presented  the 
claim,  again  present  it.®^  In  Arkansas  a  plaintiff  seeking^ 
to  foreclose  a  mortgage  or  vendor's  lien  need  not  present  the 
same  for  allowance.®^  In  Idaho  it  has  been  held  that  when 
the  United  States  comes  into  court  seeking  to  enforce  a  claim 
against  an  estate,  it  is  subject  to  the  same  statutory  require- 

e2Ellissen  v.  Halleck,  0  Cal.  386;  Falkner  v.  Folsom,  id.  412. 

53  Hancock  v.  Whittemoro,  50  Cal.  522;  People  v.  Olvera,  43  Id. 
492. 

C4  Manuel  v.  Esoolle,  65  Cal.  110. 

BS  Oleason  v.  White,  34  Cal.  258. 

MCuntor  V.  Janes.  9  Cal.  643. 

57  Ricketson  v.  Richardson,  19  Cal.  330;  .Tanln  v.  Hrowne,  9  Id. 
37;  nibemla  Sav.,  etc..  See.  v.  Hayes,  56  id.  306;  Field  v.  Field, 
77  N.  Y.  294. 

M  Kyle's  Adm'r  v.  Kylo,  15  Oliin  Si.  15. 

ss>  TTarter  ct  ah  v.  Tajruart's  Ex'rs.  14  Ohio  St.  122;  Starabaugh  v, 
Smitli.  23  id.  .584. 

CO  Mnsspr's  Ex'rs  v.  Chase.  20  Ohio  St.  577. 

ei  T.ay,  ,\dm'r.  etc.  v.  Meclianics'  Bank.  61   Mo.  72. 

f'2-Rynn  V.  Flfinapan.  Adm'x,  38  N.  J.  L.  161. 

fi3  Allen  V.  Smith.  29  Ark.  74;  Slnims  v.  Richardson,  82  id.  297; 
McClure  v.  Owens,  id.  443. 


§j  -loU,  431 


IHiKMS    0\'    (OMI'LAINTS.  350 


mcuts  as  iiulivuluals  and  must  present  its  ckiiiii/''^  The  non- 
pivseiilatiuu  of  a  claim  only  dci'eats  tlio  present  right  to  recover. 
11"  the  ])laintilV  has  failed  in  his  action  by  reason  of  such  non- 
proseuiation,  the  claim  may  be  presented  if  within  the  statutory 
time,  and  if  rejected,  a  new  suit  instituted  which  will  not  be 
barred  by  the  former  judgment.*^° 

§  430.  Allowance  and  rejection  of  claims.  An  allowance  of 
a  claim  by  one  executor  is  sulhcient  to  bind  the  estate.'"''' 
Such  allowance  must  be  made  in  writing;  a  verbal  allowance 
gives  the  claimant  no  cause  of  action.^'''  After  allowance  by 
the  executor  or  administrator,  and  approval  by  the  judge,  the 
claim  has  the  force  and  effect  of  a  judgment  against  the  estaie, 
and  is  payable  in  due  course  of  administration.*^^  The  pre- 
sentation of  a  claim  to  the  executor  or  administrator  is  the 
commencement  of  a  suit  upon  it,  and  stops  the  running  of  the 
Statute  of  Limitations.^^  And  where  the  executor  neglects  to 
indorse  his  allowance  or  rejection  for  more  than  ten  days,  the 
law  presumes  that  the  claim  was  rejected  on  the  expiration 
of  the  tenth  day.'^*'  The  claimant  of  a  rejected  claim,  in  re- 
covering judgment  thereon,  is  entitled  to  interest  from  the  time 
of  presentment.™ 

§  431.  Presentation  of  claim  secured  by  mortgage — in  Cali- 
fornia. The  statutes  of  California  regulating  the  presentation  of 
claims  secured  by  mortgage  or  other  lien  have  been  frequently 
changed.  The  decisions  of  the  courts  in  that  state,  unless  inter- 
preted with  reference  to  the  provisions  of  the  particular  statute 
applicable  thereto,  would  seem  in  irreconcilable  conflict.  Under 
the  original  sections  of  the  act  to  regulate  the  estates  of  deceased 

64  Ignited  States  v.  Hailey,  2  West  Coast  Rep.  324. 

65Hentsoh  v.  Porter,  10  Cal.  560. 

««  Willis  V.  Farley,  24  Cal.  490. 

C7  ritte  V.  Shipley.  46  Cal.  154. 

cs  Estate  of  Cook.  14  Cal.  129;  Deck's  Estate  v.  Gherke,  6  id.  066; 
Estate  of  Hidden.  23  id.  .363;  Magraw  v.  McGlynn,  26  id.  420;  Pico 
V.  De  la  Cuerra.  IR  id.  422:  McKinney  v.  Davi.s,  6  Mo.  501;  Kennerly 
r.  Shepley.  15  id.  640;  Walkerly  v.  Bacon,  85  id.  137;  Estate  of 
DlivfTfi,  70  id.  1R4;  and  see  Wilkea  v.  Cornelius,  21  Orejr.  341; 
.Tolinston  v.  Shofner,  23  id.  Ill;  In  re  Mouillerat's  Estate.  14  Mont 
245. 

"»  Beckr-it  V.  Selover.  7  Cal.  215;  68  Am.  Dec.  2.37. 

70  Rice  V.  Tnskeep.  .34  Cal.  225;  see  Roddan  v.  Doane,  02  id.  555; 
Cnwpill  V.  Dinwiddie.  08  id.  481. 

71  Pico  V.  Stevens,  18  Cal.  377;  see  Estate  of  Glenn.  74  id.  567. 


351  EXECUTOKS    AXD    ADMINISTRATORS.  §  431 

ptrsons,  the  reqiiiremeut  that  all  claims  must  be  presented  lor 
allowance  or  rejection  before  any  action  could  be  maintained 
thereon  was  held  broad  enough  to  include  claims  secured  by 
mortgage.'^-     Such    continued  to  be  the    law  on  this    subject 
until  the  adoption  of  the  Code  of  Civil  Procedure  in  1873.     By 
sections  1493  and  1500  thereof  it  was  rendered  unnecessary 
for  the  holder  of  a  mortgage  or  other  lien  to  present  the  same 
to  the  representative  of  the   estate.     In  1874  these  sections 
were  amended  so  as  to  render  such    presentation    necessary. 
In  1870  these  sections  were  again  amended  so  as  to  make  a 
presentation  unnecessary.     Section  1500,  after  providing  that 
no  holder  of  any  claim  against  an  estate  shall  maintain  any 
action  thereon  unless  the  claim  is  first  presented  to  the  executor 
or  administrator,  contains  the  following  provision:  ''An  action 
may  be  brought  by  any  holder  of  a  mortgage  or  lien  to  enforce 
the  same  against  the  property  of  the  estate  subject  thereto, 
where  all  recourse  against  any  other  property  of  the  estate  is 
expressly  waived  in  the  complaint;  but  no  counsel  fees  shall 
be  recovered  in  such  action  unless  such  claim  be  so  presented." 
These  sections,  as  amended  in  1876,  continue  to  be  the  law  in 
California,'^  and  render  it  unnecessary  for  a  pledgee  to  present 
his  claim  to  the  representative  of  the  pledgor,  unless  he  seeks 
recourse    against    other    property    of    the    estate    than    that 
pledged."^     And    in    construing  the    amendments  of    1874  re- 
pealing the  provision  authorizing  actions  upon  mortgages  to 
be  maintained  against  the  property  of  the  estate  of  a  deceased 
mortgagor,   without   presentation,   it  has  been  held  that  the 
same  are  not  retroactive,  and  do  not  give  to  a  notice  to  credit- 
ors previously  published    any  effect  which  it  did    not    have 
under  the  law  under  which  it  was  published;  and  that  a  moxtr 
gage  falling  due  after  the  amendment  was  not  barred  by  a 
failure  to  present  the  claim.'^''     If,  however,  the  mortgage  or 

72  Probate  Act.  §§  130,  13(5;  Ellisson  v.  Halleck,  0  Cal.  380;  Pico 
V.  De  la  Guerra,  18  id.  428;  Fallou  v.  Butler,  21  id.  32;  Willis  v. 
Fjirlcy,  24  id.  490;  Ellis  v.  Polhemus.  27  id.  3.".0;  Pitte  v.  Shipley,  4(5 
id.  U;0;  Marsli  v.  Dooley,  r.2  id.  232. 

7.T  [libernia  Saviiifrs.  etc.  Soo.  v.  .Jordan.  r>  Pao.  C.  L.  J.  381; 
irihemia  Sav.,  etr.,  Sor.  v.  Conlln.  (57  Cal.  180;  German  Sav.,  etc., 
Sof.  v.  IIntrliin.'<on.  (W  id.  '.2;  Wise  v.  William.').  72  id.  .^144;  Moran  v. 
Gardeinfvcr,  82  id.  ftf.;  Iliberni.-i  Smv.,  ptf..  Soc.  v.  Waclccnrcnder, 
99  id.  .'0.'?;  Spciirity  Sav.  lianlt  v.  ("oiiiioll,  <;.">  id.  .'">74. 

74  Estatf  of  Kihlx'.  .'7  Cal.  407. 

75nibornia  S.  (S:  T..  Soc.  v.  Hayes,  HO  Cal.  207;  Droyfuss  v.  Giles, 
79  id.  409;  German  Sav.,  etc.,  Soc.  v.  FLslier,  92  id.  502 


§432 


roKMS    01'    COAII'LAIJ^TS.  36^ 


othor  lien  is  ou  tlio  homestead,  the  claim  must  be  presented  for 
uUuuiUK-e,  as  section  1175  oi'  the  Code  of  Civil  Procedure  re- 
quires such  presentation,  and  section  1500  will  he  construed 
so  as  to  give  it  ell'eet.'''  But  where  a  debtor,  before  his  de- 
cooiic,  conveys  land  to  a  person  in  trust,  to  secure  his  promissory 
nolo,  and  al'ier  his  decease  the  creditor  fails  to  present  his 
claim  to  the  executor  or  administrator  within  the  time  lixed 
by  the  statute  after  publication  of  notice  to  creditors,  the  ex- 
ecutor can  not  invoke  the  power  of  a  court  of  equity  to  compel 
the  surrender  of  the  security,  or  to  enjoin  the  creditors  from 
selling  the  land  under  the  power  contained  in  the  deed  of 
trust.'^^  This  rule  is  based  upon  the  well-known  doctrines  that 
Statutes  of  Limitations  do  not  destroy  the  right  of  action,  but 
merely  bar  the  remedy,  and  that  he  who  seeks  equity  must 
do  equity. 

§  432.  Allegation  of  presentation,  and  rejection  of  claim. 
Where  the  statute  provides  that  claims  must  be  presented  for 
allowance,  and  rejected  before  action  can  be  maintained  thereon, 
all  the  facts  necessary  to  show  a  valid  presentation  and  rejec- 
tion, with  the  dates  on  which  they  severally  occurred,  must 
1)0  alleged.  It  is  well  also  to  attach  to  and  make  part  of  the 
complaint  a  copy  of  the  claim  as  presented,  that  the  court  may 
judge  of  its  legal  sufficiency."^* 

TfiCamp  V.  Grider,  02  Cal.  20;  Wise  v.  Williams,  88  id.  30; 
Mechanics',  etc.,  Loan  Assoc,  v.  King,  83  id.  440;  Bollinger  v. 
Manniri};,  79  id.  7;  Perkins  v.  Onyett,  80  id.  348. 

"7  Wliitmore  y.  San  Fiaucisco  Savings  Union,  50  Cal.  14.5;  see,  also, 
Sichel  V.  Carrillo,  42  id.  493. 

7H  Ellissen  v.  Halleclv,  0  Cal.  393;  Falliner  v.  Folsom,  id.  412; 
Hcntscli  V.  Porter,  10  id.  r>o8;  Fallon  v.  Butler,  21  id.  24;  81  Am.  Dec. 
14^»;  Ellis  V.  Polhemus,  27  Cal.  3.54;  Benedict  v.  Haggin,  2  id.  380; 
Janin  v.  Browne,  59  id.  37.  In  this  latter  case,  a  complaint  that 
alleged  that  the  claim  sued  upon  w^as  presented  to  the  administra- 
tor within  the  time  limited  in  the  notice  to  creditors,  and  a  copy  of 
the  claim  presented,  with  the  verification  annexed,  together  with 
the  indorsements  thereon,  was  attached  to  the  complaint,  was  held 
sufficirnt.  Snfilciency  of  averments  as  to  presentation  and  non- 
payment of  claim.  See  Cousins  v.  Partridge,  79  Cal.  224;  Wise  v. 
Hogan.  77  id.  184;  Rowland  v.  Madden,  72  id.  17.  A  complaint  is 
not  demurrable  for  not  alleging  that  the  plaintiff  presented  his 
chiim  to  the  administrator  within  the  time  limited  in  the  notice 
to  creditors,  if  it  does  not  show  upon  its  face  that  it  was  not  so 
presented,  or  that  it  was  presented  at  a  date  after  the  time  limited 
In  the  notice.    McCann  v.  Pennie,  100  Cal.  547. 


353  EXECUTORS   AXD   ADAIIXISTRATOES.  §  433 

§  433.  Forms  of  complaints  —  description  of  party  —  capacity 
—  promise.  In  an  action  against  executors  for  a  legacy,  plain- 
tilt'  must  aver  and  prove  existing  assets/^  A  legatee  who  has 
been  represented  by  counsel  at  the  allowance  of  accounts  against 
the  estate  will  not  be  allowed,  after  a  lapse  of  time,  to  come 
in  and  have  the  allowance  set  aside  on  a  mere  general  aver- 
ment of  newly-discovered  evidence.  In  such  a  case  it  is  not 
sufficient  to  allege  ignorance  at  the  time  of  allowance,  but  the 
plaintiif  must  go  further,  and  show  that  he  could  not,  with  the 
use  of  due  diligence  on  his  part,  have  made  himself  acquainted 
with,  or  ascertained  the  existence  of  the  facts.*^  A  declaration 
on  a  promise  made  by  the  defendant  as  administrator  must 
aver  assets  in  order  to  charge  him  personally  de  bonis  propriis.^^ 
In  Louisiana,  an  action  brought  by  a  creditor  of  a  testator 
against  his  executor,  charging  him  with  a  devastavit,  without 
averring  proceedings  to  compel  the  defendant  to  exhibit  a  table 
of  distribution,  can  not  be  maintained.^^  A  complaint  against 
executors  seeking  to  charge  them  in  their  representative  ca- 
pacity can  not  be  sustained  on  demui-rer,  if  the  facts  alleged 
show  only  a  personal  liability  on  their  part.^  If  the  defendant 
is  described  in  the  caption  of  the  complaint  as  administrator, 
it  is  immaterial  so  long  as  the  facts  stated  in  the  body  of  the 
complaint  show  he  is  not  sought  to  be  charged  as  adminis- 
trator.^"* 

In  an  action  against  executors,  plaintiff  may,  to  save  the 
Statute  of  Limitations,  lay  the  promise  as  made  by  the  repre- 
sentative.^^ A  complaint  which  alleges  a  promise  by  deceased, 
and  also  a  promise  by  his  administrators,  though  informal,  is 
not  bad  on  general  demurrer,  if  it  appears  that  defendants  are 

79  Dewitt  V.  Schooilmaker,  2  Johns.  243. 

80  Williams  v.  Price,  11  Cal.  212. 

81  Adams  v.  Wliitinp:.  2  Cranch  C.  C.  132.  As  to  sufficiency  of 
complaint  apainst  executrix,  in  her  own  wrong,  which  did  not  charge 
her  as  such,  see  HaiTJer  v.  West,  1  Cranch  C.  C.  192;  or  of  one 
which  did  not  show  l)y  whom  the  letters  are  granted.  Cawood  v. 
Nichols.  1  Cranch  C.  C.  180. 

82McCill  V.  Armour.  11  How.  (U.  S.)  142.  Complaint  In  action 
by  an  administrator  with  the  will  annexed  against  his  pre- 
decessor in  tlie  Inist  for  a  dcvaxtai'ii.  See  Steel  v.  Ilolladay,  20 
Oreg.  7. 

8.-3  Rartlett  v.  Ilntcli,  17  Abb.  Pr.  4(11. 

M  T'eoplo  V.  Iloughtaling,  7  Cal.  3r)0. 

fir-Whltaker  v.  A\')!ifM!.-..r  <;  ,Tr,i.7.s.  112;  Carter  v.  Phelps,  8  Id. 
440. 

Vol.  1—45 


^    i;54  FOliAiS   Ul-'   CO.MI'LAIJSTS.  354 

cliargt.a  lu  ilK'ir  roprcsentative  capacity.^*'  Where  the  com- 
plaint iliil  not  stalo  that  the  proniitses  were  made  in  the  testa- 
lor's  lilVtinie.  nor  lo  liiiu,  nor  I'or  an  inilGbtedness  to  him,,  nor 
to  thoni  as  aihniniijlraliu-s,  the  action  is  iu  their  individual 
and  not  in  their  representative  capacity.**^  An  action  to  re- 
cover the  amount  distributed  to  the  plaintiff  by  the  decree 
of  distribution  in  the  estate  of  a  decedent  should  be  brought 
against  the  defendant  individually,  and  not  in  his  representa- 
tive capacity.  In  such  action  the  complaint  need  not  allege 
a  demand  on  the  defendant  as  executor  or  administrator,  the 
uction  itself  being  a  sufhcient  demand.^*  A  complaint  by  the 
surviving  husband  of  a  testatrix  against  the  executor  of  his  de- 
ceased wife,  alleging  that  as  such  executor  he  lias  received 
from  a  savings  bank  a  sum  of  money  "  to  and  for  the  use  of 
and  belonging  to  the  plaintiff,"  which  the  defendant  has  refused 
to  pay  to  the  plaintiff  upon  demand,  states  sufficient  facts  for 
a  personal  judgment  against  the  executor.^^  A  complaint  in 
an  action  upon  an  executor's  bond  which  alleges  that  the  ex- 
ecutor was  appointed;  that  letters  testamentary  were  ordered 
to  be  issued  to  him  upon  his  executing  a  bond  according  to 
law.  and  that  the  executor  and  sureties  duly  made  and  executed 
the  bond  required  by  the  order,  sufficiently  alleges  compliance 
with  the  requirements  of  the  statute,  as  against  a  general  de- 
murrer, although  the  complaint  does  not  specifically  allege  that 
the  bond  sued  on  was  approved  by  the  judge  or  was  filed  or 
recorded,  or  that  a  certificate  of  justification  was  attached 
thereto.^  A  complaint  in  an  action  against  an  administrator 
and  the  sureties  on  his  bond  for  a  failure  to  pay  the  claims 
allowed  against  the  estate  which  does  not  allege  that  the  fund 
in  his  hands  is  sufficient  to  pay  all  in  fidh  including  costs  of 
administration,  is  held  to  be  defective.^^ 

S  434.  Torts,  actions  of.  No  action  can  be  sustained  against 
an  executor  or  administrator  as  such  on  a  penal  statute;  nor 
when  the  cause  of  action  is  founded  upon  any  malfeasance  or 
misfeasance,  is  a  tort,  or  arises  ex  delicto,  such  as  trespass,  false 

R«  Curtis  V.  Bowrie,  Adm'rs  of.  2  McLean,  374. 
"TWorden  v.  WorthinRton.  2  Barb.  368;  see  Merritt  v.  Seaman, 
0  N.  Y.  1P.S. 
"«  >felone  v.  Davis.  07  Cal.  279. 
f'J  Kirsch  v.  Derby,  90  Cal.  602. 
0"  Evans  v.  Oorlcen,  105  Cal.  311. 
81  TTowe  V.  The  People,  etc.,  7  Col.  App.  535. 


355  EXECUTORS    AXD    ADMIXISTRATORS.         §§  435,  43G 

imprisonment^  assault  and  battery,  slander,  deceit,  diverting  a 
Avater-course,  etc.,  when  the  complaint  imputes  a  tort  done  to 
the  person  or  goods  of  another  by  the  testator  or  intestate.^- 

§  435.  Administrator  with  will  annexed.  If  the  testator  ap- 
points an  executor  of  his  will,  and  the  executor  dies,  and  an 
administrator  with  the  will  annexed  is  appointed,  the  admin- 
istrator with  the  will  annexed,  under  the  statutes  of  California, 
possesses  all  the  powers  conferred  on  the  executor  named  in 
the  will,  and  can  sell  the  land  devised  if  the  executor  could 
have  sold  it.^^ 

§  436.  Action  for  use  and  occupation  against  executor.  At 
the  common  law  an  executor  has  constructive  possession  of  the 
decedent's  goods  from  the  time  of  his  death,  and  may  declare 
on  his  own  possession  "  as  executor,"  although  in  fact  he  never 
has  had  possession.  Under  the  laws  of  California  an  admin- 
istrator is  vested  with  the  right  to  the  possession  of  the  real 
estate  of  his  intestate  as  well  as  to  the  personal  property;  and 
his  duties  and  liabilities  in  respect  thereto  are,  therefore,  of 
the  same  general  character.  If  the  administrator  occupies  and 
uses  premises  belonging  to  his  estate,  he  becomes  at  least  the 
tenant  of  the  estate,  liable  in  any  event  for  the  value  of  its  use 
and  occupation;  and  if  he  makes  a  profit,  he  becomes  liable 
for  that  also,  at  the  election  of  the  parties  in  interest;  such 
is  the  law  of  his  relation.  If  in  this  case  the  administrator 
sustains  a  loss,  the  loss  is  his,  and  the  hardship  is  no  greater 
than  a  like  result  in  the  case  of  any  other  tenant.^^ 

92  Williams  on  Ex.,  pp.  172S.  1720:  People  v.  Oibbs.  f)  Wend.  29; 
Eustace  v.  .Talms,  ?,H  Cal.  P,:  Melone  v.  Davis.  r>7  id.  279.  In  New 
Jprsey  an  aftion  in  tort  for  notrliponce  or  deceit  will  lie  ajrainst  the 
personal  rey)resentative  of  a  deceased  wrongdoer.  Tichenor  v. 
Hayes.  41  N.  .T.  L.  U«;  32  Am.  Hep.  IRO. 

MKifiAvell  V.  Rrummajrim.  P,2  Cal.  4P,G. 

5'4  Walls  V.  Walk(>r.  ?,7  Cnl.  424;  00  Am.  Dec.  200;  and  see  Estate 
of  Misamore,  00  Tal.  ir.O:  /„  re  Rose.  SO  id.  IfiO,  17.1.  Under  section 
l.")72  of  the  Co<le  of  Civil  Procedure  one  having  an  estate  of  in- 
heritance in  land  fi-audulently  sold  by  an  executor  or  administrator, 
may  maintain  an  action  against  him  to  recover  double  the  value 
of  the  land  sold,  but  that  section  does  not  authorize  an  action 
acrainst  tlic  siu'eties  on  his  oflicial  bond.  Weihe  v.  Statham,  67 
Cal.  245. 


CHAPTER  V. 

HUSBAND   AND    WIFE. 

§  437.  Against  husband  for  necessaries  furnished  to  defend- 
ant's family,  without  his  express  request,  at  a  reasonable  price. 

Form  No.  93. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18..,  at 

,  he  furnished  to  Mary  Smith,  the  wife  of  de- 
fendant, at  her  request,  sundry  articles  of  [food  or  clothing, 
etc.],  to-wit: 

II.  That  the  same  were  necessary  to  her  maintenance,  and 
suitable  to  her  station  in  life. 

III.  That  the  same  were  reasonably  worth dollars. 

IV.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

§  438.  Against  husband  for  goods  furnished  to  wife.  To  sue 
a  husljand  for  goods  furnished  to  his  wife,  it  should  be  alleged 
that  the  goods  were  sold  and  delivered  to  him.  If  she  were 
authorized  by  the  relationship,  the  nature  and  character  of  the 
goods,  and  his  circumstances  to  buy  them,  they  were  in  law 
sold  to  him;  and  averring. they  were  sold  to  her  states  no  cause 
against  him,  and  such  averments  may  be  omitted  as  mere  evi- 
dence and  not  ultimate  facts. ^ 

§  439.  The  same  —  husband,  when  liable.  If  a  husband  fails 
or  refuses  to  provide  a  support  for  his  wife,  the.  law  authorizes 
her  to  purchase  from  others,  on  the  credit  of  her  husband, 
whatever  is  necessary  for  her  maintenance,  and  suitable  to  her 

1  .Tar-obs  V.  Roott.  m  Cal.  74.  The  complaint  in  this  case  did  not 
allr-Ro  thp  faf^ts  def^lared  by  sections  174  and  17;"")  of  the  Civil  Code, 
fo  frivp  a  ranse  of  action  ajrainst  the  husband.  Rut  where  the 
complaint  spts  out  such  faot.s  it  is  sufficient.  notwithstandiuG: 
tlH'  f.iilnro  to  nllocre  thnt  th'^  nrticlos  were  sold  and  delivered  to  the 
defendant.    Xissen  v.  Reudixsen,  69  Cal.  521. 


357  HUSBAND  AND  WIFE.  §§  440,  441 

station  in  life.^  It  is  not  necessary  to  allege  that  the  wife 
acted  as  the  husband's  agent,  or  with  his  consent.  In  nine 
cases  out  of  ten,  these  averments  would  be  fictions  of  law,  which 
must  never  be  pleaded  under  the  Code.  The  husband  is  liable 
in  the  proper  cases,  although  he  had  expressly  forbidden  the 
plaintiff  to  trust  his  wife.^ 

§  440.  The  same  —  husband,  when  not  liable.  A  wife  who, 
without  cause,  and  against  her  husband's  will,  refuses  to  live 
with  him,  can  not  bind  him  for  necessaries  to  a  third  party, 
who  knows  that  she  is  not  living  with  her  husband,  and  who 
sells  to  her  without  further  inquiry.^ 

§  441.  Against  husband  and  wife  for  goods  sold,  for  her  separ- 
ate estate. 

Form  No.  94.'^ 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  between  the  day  of  ,  18 . . , 

and  the day  of ,  18 .  . ,  at , 

the  plaintiff  sold  and  delivered  to  the  defendant  A.  B.,  who 
was  then,  and  still  is,  the  wife  of  the  defendant  C.  B.,  materials 
used  for  the  building  of  a  house  for  her,  upon  and  for  the 
benefit  of  her  separate  lands  and  premises,  situated  in  the  town 

of ,  in  the  county  of ,  bounded  and 

described  as  follows:   [Describe  the  premises.] 

II.  That  the  said  defendant  A.  B.,  in  consideration  thereof, 
then  and  there  promised  the  plaintiff  that  she  would  pay  for 

the  same  dollars,  out  of  her  separate  property, 

and  did  agree  and  intend  that  the  same  should  be  paid  for  out 
of  her  separate  property. 

TIT.  That  said  materials  are  reasonably  worth  the  said  sum 
of dollars,  and  that  no  part  thereof  has  been  paid. 

IV.  That  plaintiff  further  alleges,  on  information  and  belief, 
that  the  premises  above  mentioned  and  described,  were,  fit  and 
before  the day  of ,  18 .  .   [date  of  mar- 

2r;allan(l  v.  r.allaml,  r>,S  Cal.  2C,r>;  Thill  v.  r«lilman,  TO  Towa,  638; 
TifTfrh  V.  Warner,  47  Minn.  2.V);  2.S  Am.  St.  Rep.  P,r,2:  In  re 
Wcrinfror,  \()()  Cal.  .'U.".. 

3  Kent's  Com.  14R:  Sykos  v.  TTalslcad,  1  San<lf.  4.sn:  ('al.  Civ.  Code, 
5  174. 

4  Brown  v.  'Miultrptt.  40  Vt.  OS;  Pal.  rivil  Code,  §  iTf). 

0  This  form  Is  applirablo  to  New  York  and  some  other  statos.  The 
following.  Form  No.  O.'S.  is  adapted  to  the  practice  In  California. 


^K  4l\?,    ii;)  I  Oli.MS    01'    t'D.M  PLAINTS.  358 

ria"'oJ,  siiifc  haw  boon,  ami  now  arc,  licr  i?ole  and  separaie 
prtt])i.'rtv,  and  tlio  same  are  worlli  about dollars. 

Wlioiol'ore   the   plaintilf   demands   judgment: 

1.  'riiat  the  separate  property  aforesaid  be  charged  with  the 

payment  of  the  said  sum  of dolhirs,  with  interest 

from    ,  together  with  the  costs  of  this  action. 

'.\  That  tiie  said  property  be  applied  to  the  payment  of  the 
same. 

3.  That  a  trustee  be  appointed  to  take  possession  of  her  said 
separate  property,  and  dispose  of  it,  or  of  so  much  thereof  as 
shall  be  necessary  to  satisfy  the  same. 

J  442.  Against  husband  and  wife  for  goods  sold  to  the  wife 
for  her  separate  estate. 

Form  No.  P5. 

[Title.] 
The  plaintiff  complains  of  the  defendants,  and  alleges: 

I.  That  between  the   day  of   ,  IS. ., 

and  the day  of ,  18 .  . ,  at , 

the  plaintiff  sold  and  delivered  to  the  defendant  A.  B.,  who 
then  was  and  still  is  the  wife  of  C.  B.,  at  her  request,  materials 
used  for  the  building  of  a  house  for  her,  upon  and  for  the 
benefit  of  her  separate  lands  and  property. 

II.  That  said  materials  w'cre  of  the  agreed  price  and  value 

[or  were  reasonably  worth  the  sum]  of dollars, 

and  that  no  part  thereof  has  been  paid. 

Wherefore  the  plaintiff  demands  Judgment  against  the  de- 
fendants for  the  said  sum  of dollars,  and  interest 

thereon  from  the   day  of   ,  18. .,  and 

costs  of  suit. 

8  443.  Charging  separate  estate.  A  complaint  under  the 
New  York  practice,  which  directly  alleges  that  the  note  was 
given  by  her  for  the  express  purpose  of  charging  her  separate 
estate  with  its  payment,  is  sufficient  on  demurrer.®  So  it  seems 
a  complaint  seeking  to  charge  the  separate  estate  of  the  wife 
is  bad.  if  it  does  not  set  forth  the  property  and  the  nature  of 
her  intorc'stJ 

6  Yalo  V.  Dcderpr,  IS  N.  Y.  20.^;  72  Am.  Dec.  .503;  Francis  v.  Ross, 
17  now.  Pr.  r,c,i:  rhillips  y.  Ilaffadon,  12  id.  17. 

7  Mallory  v.  Vanderheyden,  3  Barb.  Ch.  9;  Dyett  v.  N.  A.  C.  Co., 
2ft  Wpiid.  .570;  32  Am.  Dpo.  .598;  Sexton  v.  Fleet,  (>  Abb.  Pr.  S. 
Liability  of  the  wife  under  Oregon  statutes,  for  goods  for  family 


359  HUSBAKD   AXD   WIFE.  §§  444:   44G 

§  444.  Common  and  separate  property  equally  liable.  The 
separate  property  of  the  wife,  aud  the  common  property  of 
both  husband  and  wife,  are  equally  liable  for  the  debts  of 
the  wife  contracted  before  marriage.^  The  statute  changes  the 
common-law  rule  on  this  subject.  In  an  action  against  the 
husband  and  wife,  on  a  sole  debt  of  the  wife  contracted  by 
her  before  marriage,  a  judgment  may  be  rendered  to  be  col- 
lected out  of  the  common  property  of  both  husband  and  wife.^ 

§  445.  Consideration.  If  the  debt  is  contracted  for  the  bene- 
fit of  the  wife,  or  of  her  estate,  no  allegation  of  an  intent  to 
charge  it  on  the  estate  is  necessary.^^  Thus,  where  the  wife 
executes  a  note,  although  as  surety,  such  intent  need  not  be 
averred;  it  is  presumed  from  her  signing  an  express  contract 
in  writing. ^^  In  Xew  York,  if  the  consideration  were  not  for 
the  benefit  of  the  wife  or  her  estate,  this  allegation  is  neces- 
sary.^- The  agreement  charging  her  estate  must  be  in  writing; 
but  this  is  not  necessary  to  be  alleged.^^ 

§  446.  Alleging  coverture.  The  fact  of  coverture  has  ceased 
to  have  any  relation  to  the  technical  right  of  maintaining  an 
action  by  a  married  woman  in  respect  to  her  separate  property, 
and  the  allegation  of  coverture  in  the  complaint  is  not  neces- 
sary.i* 

use.  see  Dodd  v.  St.  .John,  22  Oreg.  253.  To  make  the  wife  liable 
for  goods  sold  for  family  use,  the  complaint  must  affirmatively 
show  that  the  goods  were  for  the  benefit  of  the  family.  Smith  v. 
Sherwin,  11  Oreg.  269. 

8  Van  Maren  v.  Johnson,  1.5  Cal.  313. 

0  Vlautin  v.  Bumpus,  35  Cal.  214;  sec  Civ.  Code,  chap.  3.  Husband 
and  Wife,  §§  inS.  107,  171. 

10  Yale  V.  Dedorcr,  18  N.  Y.  273,  284,  285;  72  Am.  Dec.  503. 

11  Williams  v.  IJrmston.  35  Ohio  St.  290;  35  Am.  Rep.  611 
riiillil)S  v.  Craves,  20  Ohio  St.  371;  Avery  v.  Vansiclde,  35  id.  270 
Lillard  v.  Turner.  10  B.  Mou.  374;  Dobbin  v.  Hubbard.  17  Ark.  189 
ration  v.  Kinsman.  17  Iowa,  428;  Boarmau  v.  Groves,  23  Miss.  280 
Dnring  v.  Boyle,  8  Kan.  525;  Mt'troi»olitan  Bank  v.  Taylor,  02  Mo. 
328. 

12  Yale  V.  Doderer.  18  N.  Y.  281;  72  Am.  Dec.  .503. 

13  Yale  V.  Dcdercr.  22  N.  Y.  4.50;  78  Am.  Dec.  210. 

ureters  v.  Fowler.  41  BmH).  407;  Evans  v.  De  Lay,  81  Cal.  103. 
Slie  need  not  in  her  (oiiiidaint  allege  the  covertm-e,  but  when  tliat 
fact  appears  upon  tlic  trial,  ni.-iy  show  that  the  projierty  demanded 
Is  her  separate  property.    Shumway  v.  Lakey,  07  Cal.  458. 


j5j  i-t:-i5o 


FORMS   OF   COMPLAINTS.  360 


§  447.  Demnud  and  form  of  judgment.  To  charge  the  sepa- 
ratf  estiito  of  a  witV  in  an  oiiuitable  action  in  New  York,  the 
demand  must  be  a.s  in  tliis  roiia.^'^  But  there  is  no  difference 
in  tlie  form  of  judgment,  tlfough  tlie  execution  is  restricted.i» 

§  448.  Estate  must  be  shown.  The  coniphiint  must  show 
what,  the  estate  is,  and  what  is  its  vahie.^^  But  such  is  not 
the  practice  in  California;  for  in  this  state  the  comphxint  need 
not  set  out  any  separate  property  of  the  defendant,  because 
the  wife  was  liable  in  personam  before  coverture,  and  under 
our  statute  continues  so  after  niarriage.^^ 

§  449.  For  benefit  of  her  separate  lands.  The  weight  of 
the  decisions  is,  that  the  acts  relative  to  the  rights  and  liabilities 
of  married  women  in  New  York,  enlarged  only  the  power  of 
married  women  to  hold  and  convey  their  separate  estate,  but 
did  not  operate  to  subject  them  to  new  remedies  on  their 
personal  contracts.^^  Under  the  California  Code  she  may  make 
herself  liable  without  specially  charging  her  separate  estate.^^ 

§  450.  Homestead.  A  complaint  by  husband  and  wife  to 
recover  the  homestead  conveyed  away  by  the  deed  of  the  hus- 
band alone,  must  aver  either  that  the  premises  were  occupied 
as  a  homestead  at  the  date  of  the  conveyance,  or  that  they 
had  not  been  previously  abandoned.^^  So  a  married  woman 
can  not  alone  convey  away  the  homestead.^ 

ir.  Col)ine  v.  St.  John,  12  How.  Pr.  3.S3;  Coon  v.  Brook,  21  Barb. 
54(5. 

16  Laws  of  New  York  (18.58).  p.  10.57.  For  form  of  complaint  on  a 
note  indorsed  by  tlie  wife,  while  sole,  before  the  delivery  of  the 
note  to  the  payee,  see  Sexton  v.  Fleet,  G  Abb.  Pr.  8;  S.  C,  15  How. 
Pr.  lOG. 

17  Sexton  v.  Fleet,  6  Abb.  Pr.  9;  S.  C,  15  How.  Pr.  106;  Cobine  v. 
St.  John,  12  id.  336. 

18  Bostic  V.  Love,  16  Cal.  69;  see,  also,  Foote  v.  Morris,  12  N.  Y. 
Leg.  Obs.  61. 

19  Francis  v.  Ross,  17  IIow.  Pr.  .561;  Gates  v.  Brower,  6  N.  Y. 
205;  Swit'/cr  v.  Valentine.  4  Duer,  96;  Cobine  v.  St.  John,  12  How. 
Pr.  3.^3;  Cwjn  v.  Brook,  21  Barb.  546.  For  other  modes  of  pleading, 
see  Coster  v.  Isaacs,  16  Abb.  Pr.  328;  Baldwin  v.  Kimmel,  id.  3.53; 
YounK  V.  Gori.  13  id.  13,  note;  Thompson  v.  Sargent,  15  id.  452; 
Aitken  v.  Clark,  16  id.  .328,  note. 

20  See  chapter  3.  Civil  Code. 

21  Harper  v.  Forbes.  15  Cal.  202. 

"  Pool  V.  Gerard,  6  Cal.  73;  Flope  v.  Garvey,  47  id.  371. 


361  HUSBAXD  AXD   WIFE.  §§  451-456 

§  451.  Marriage.  A  marriage  de  facto,  althougli  not  legally 
solemnized,  is  suiiicient  at  common  law  to  render  the  husband 
liable  for  the  previously-contracted  debts  of  the  wife.~^  It  is 
not  material  whether  the  marriage  was  solemnized,  if  the  parties 
afterwards,  and  after  the  passage  af  the  act,  resided  and  ac- 
quired the  property  here.-'* 

§  452.  Misjoinder  of  causes  of  action.  Claim  for  personal 
judgment  against  husband,  and  enforcement  of  a  lien  against 
wife's  separate  estate,  are  incompatible.^ 

§  453.  Promise  of  married  woman.  In  New  York,  in  an 
action  to  charge  the  separate  estate  of  a  married  woman  upon 
her  promise,  it  is  necessary  that  the  complaint  allege  either 
that  the  consideration  of  the  promise  was  for  the  benefit  of 
the  estate,  or  that  she  intended  to  charge  such  estate.^^ 

§  454.  Property  liable  for  debts  of  wife.  The  separate  prop- 
erty of  the  wife  is  liable  for  her  debts  contracted  before 
marriage,  and  the  separate  property  of  her  husband  is  not.^ 
The  interest  of  the  wife  in  the  common  property  is  a  mere 
expectancy,  like  the  interest  which  an  heir  may  possess  in  the 
property  of  his  ancestors.^® 

§  455.  The  same  —  property  owned  before  marriage.  The  com- 
plaint is  not  demurraljle  for  omitting  to  designate  the  wife's 
separate  property,  which  by  the  statute  law  of  New  York,  1853, 
is  alone  bound  by  the  judgment  in  such  case.^^ 

§  456.  Rent.  Where  husl)and  and  wife  are  sued  for  rent 
claimed  on  a  lease  made  by  plaintiff  to  the  wife,  plaintiff  and 
the  wife  being  tenants  in  common  of  the  property,  it  was  held, 

23  Norwood  V.  Stevenson,  Andr.  227,  228;  Robinson  v.  Nahon, 
1  Camp.  245;  Watson  v.  Threlkeld,  2  Esp.  637. 

24  Dye  V.  Dye,  11  Cal.  103;  see  People  v.  Anderp'^n.  2(5  id.  129; 
fJraliam  v.  Bennott,  2  id.  .^)03;  Letters  v.  Cady,  10  id.  .">.*?3. 

25  I'alen  v.  Lent,  .'.  Bosw.  713;  Sexton  v.  Fleet,  2  Hilt.  477. 
2«ralcn  v.  Lent,  .^>  Bosw.  713;  Francis  v.  Bess,  17  How.  Pr.  .501; 

see  Conlin  v.  C.Tntrell.  (rt  \.  V.  217;  Treadwell  v.  Arelier,  70  id.  19(i. 

27  ("al.  rivll  f'ode.  §  170;  Van  Marcn  v.  .lolmson.  1.1  Cal.  311; 
\'anderlieyden  v.  Miilloi-j-.  1  N.  Y.  472. 

2«  \an  Maren  v.  .lolmson.  !.''>  Cal.  311;  Gnioe  v.  Lawrence,  2  La. 
.\nn.  22<'>;  see,  also,  Packard  v.  Arellanes,  17  Cal.  587;  Ylantin  v. 
BnnipuH,  35  id.  214. 

29Foote   V.   Morris,   12  \.   Y.   Le^.   Olis.  61. 

4r, 


^g  4oT-4ilO  I'OK.Ms  or  complaints.  o62 

thai  iho  wit'o  axn  hv  liable  only  as  sole  iracUT  under  the  statute; 
and  that  tlie  eoini>laint  must  aver  iaels  requisite  to  establish 
her  liahilitv  in  that  eharueter,  and  that  the  allegation  that  she 
"  Nvas  doing  business  as  a  fc7nc  sole,  with  the  consent  of  her 
husband,"  is  insullieient.^*^ 

§  457.  Sale  and  delivery.  The  complaint  must  allege  a 
sale  for  the  beneht  of  such  estate.^^  Alleging  a  sale  and  deliv- 
ery to  the  husband,  instead  of  alleging  a  sale  and  delivery  to 
tlie  wife  on  the  faith  of  or  for  the  benefit  of  her  separate  estate, 
is  not  suiHcient.^"  j\Ierely  alleging  a  sale  on  the  credit  of  her 
estate,  is  insufficient  on  demurrer.^^ 

§  458.  Separate  property.  In  an  action  against  husband 
and  wife  to  recover  antenuptial  debts,  the  complaint  need  not 
designate  wife's  separate  property.^*  Where  the  complaint  does 
not  aver  that  the  purchase  money  paid  for  land  bought  in  the 
name  of  the  wife  was  her  separate  proj)erty,  the  presumption 
is  that  it  is  common  property. ^^ 

§  459.  Sufficient  averment.  Where  the  complaint  in  an  ac- 
tion upon  the  contract  of  a  married  woman  alleged  that  the 
property  sold  was  for  the  use  and  benefit  of  the  wife,  that  it 
was  purchased  at  her  special  instance  and  request,  and  used  in 
and  about  her  premises,  it  is  a  sufficient  averment  of  a  contract 
made  with  the  wife  in  relation  to  her  separate  property.^^ 

§  460.   Against  husband  and  wife  on  note  by  wife  while  sole. 
Form  No.  96. 

[Title.] 
The  plaintiff  complains  of  the  said  C.  D.  and  E.,  his  wife, 
the  defendants,  for  that  the  said  E.,  heretofore,  whilst  she  was 

30  Aiken  v.  Davis,  17  Cal.  11^ 

31  Bas.s  V.  Bean,  16  How.  Pr.  03. 

32  Arnold  v.  Kignold,  16  How.  Tr.   158. 

33  Bass  V.  Bean,  16  How.  Pr.  93. 

34Foote  V.  Morris,  12  N.  Y.  Leg.  Obs.  61. 

ssAlthof  V.  Conheim,  38  Cal.  230;  99  Am.  Deo.  363. 

soMusser  v.  Ilobart,  14  Iowa,  248.  In  an  action  against  a  mar- 
ried woman  as  indorser,  an  allegation  that  she  had  a  separate 
estate,  and  tliat,  by  indorsing  the  note  as  alleged,  she  intended 
to  and  flid  fliarge  her  separate  estate  with  the  payment  thereof, 
and  tliat  the  fon  si  deration  of  the  note  went  for  the  benefit  of  her 
sf'parate  estate,  is  sufficient.  Gfroehner  v.  McCarty,  2  Abb.  N.  C. 
70. 


363  HUSBAXD   A>,'D    WIFE.  §§  -401,  -402 

sole  and  unmarried,  on  the day  of ,  18. . .,  at 

[naming  place],  made  her  certain  promissory  note  in  writing  of 
that  date,  and  then  and  there  delivered  the  same  to  the  said 
plaintiff,  and  thereby  promised,  by  her  then  name  of  E.  F.,  to 
pay  to  the  said  plaintiff,  or  order,  the  sum  of dol- 
lars in after  the  date  thereof;  and  the  said  E.  F. 

has  since  intermarried  with  the  said  CD.;  yet  the  said  defend- 
ants have  not,  nor  hath  either  of  them,  paid  the  said  sum  of 
money,  or  any  part  thereof,  to  the  said  plaintiff. 

AVherefore  the  said  plaintiff  prays  judgment  against  the  said 

defendants  for  the  said  sum  of dollars,  together 

with  interest  thereon  from  the   day  of , 

18.  .,  and  costs  of  suit. 

§  461.   By  a  married  woman. 

Form  No.  p/. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18.  .  .,  at y 

the  plaintiff  intermarried  with  one  A.  B.,  whose  wife  she  now  is. 

II.  That  on  the clay  of ,  18.  . .,  at , 

the  defendant  made  his  promissory  note  payable  to  the  plaintiff 

for  the  sum  of dollars,  and  which  note  is  in  words  and 

figures  as  follows:     [Copy  note.] 

III.  That  the  consideration  of  the  said  note  was  the  payment 

by  this  plaintiff  to  the  maker  thereof  of  the  sum  of 

dollars,  which  said  sum  was  at  and  before  the  time  of  her  mar- 
riage owned  l)y  her,  and  thereafter  was  her  sole  and  separate 
property,  and  so  continued  until  the  date  the  said  note  became 
due,  and  that  said  note  thereupon  became  and  ever  since  has 
remained  her  sole  and  separate  property  [or  otherwise,  accord- 
ing to  the  circumstances,  showing  it  to  be  her  separate  estate]. 

[Demand  of  Judgment.] 

8  462.  Division  of  common  property.  In  an  action  for  the 
division  of  the  coiinnon  jtrojK'rfy  of  luisljand  and  wife,  after 
a  decree  of  divorce,  the  plaintiff,  to  bring  herself  within  the 
provisions  of  the  act  "defining  the  rights  of  husband  and  wife," 
passed  April  17,  IH.'iO,  must  affirmatively  state  such  facts  as  give 
her  the  right  to  the  property  under  the  act.^^ 

87  Dye  V.  Dyo,  11  Cal.   ir.;>,:  soo  .Tolmson   v.   .Tolinsnn,   id.  200;  70 
Am.  Deo.  774. 


§§  403-400 


FDKMS    OF    COMI'LAINTS.  364 


j  4.(53.  Maninge,  averment  of.  AVliere  tlio  plaintifT  averred 
in  her  c-omplaint,  in  a  suit  brought  for  her  distributive  share  of 
the  estate  of  an  aUeged  deceased  husband,  that  the  deceased 
made  proposiils  of  nuirriage  .to  her,  which  she  accepted,  and 
consented  to  live  with  him  as  his  true  and  lawful  wife;  and 
that  in  accordance  with  his  wishes  she  henceforth  lived  and  co- 
habited with  him  as  his  wife,  always  conducting  herself  as  a 
true,  faithful,  and  afl'ectionate  wife  should  do,  it  was  held  that 
these  were  insuliicient  averments  of  the  existence  of  a  marriage, 
and  that  the  facts  averred  were  only  prima  facie  evidence  of  a 
marriage.^® 

§  464.  Mortgage.  It  is  immaterial  whether  a  conveyance 
to  the  wife  was  made  with  or  without  a  fraudulent  intent;  in 
either  case  it  is  unavailing  against  the  mortgage,  because  the 
inference  from  the  language  of  the  complaint  that  the  convey- 
ance was  upon  purchase  and  during  marriage,  and,  consequently, 
that  the  property  was  common  property,  is  not  negatived  by 
any  averment  that  the  property  was  transferred  to  her  before 
marriage,  or  was  a  gift  to  her,  or  in  exchange  for  her  separate 
property.^^ 

§  465.  Mortgage  of  separate  property.  Where  a  wife  sought 
relief  by  a  bill  in  chancery  from  a  mortgage  of  her  separate 
property,  it  was  no  objection  to  the  bill,  as  a  rule  of  pleading, 
that  a  husband  was  made  a  party  to  it  with  the  wife.  He  acts 
only  as  her  prochein  ami.'^'^ 

§  466.   Separate  property  of  wife.       The    law     of     California 
provides  that  all  property  owned  by  the  wife  before  her  mar- 
riage, or  after  marriage,  acquired  by  gift,  bequest,  devise,  or 
descent,  shall  be  her  separate  estate  ;^^  the  law  in  this  respect 
being  similar  to  that  of  Texas  and  Louisiana. ^^     A  general  aver- 
ts Letters  v.  Cady.  10  Cal.  533;  see  People  v.  Anderson,  26  id.  129; 
Kellj-  V.  Munjby,  70  id.  564. 
30  Kohner  v.  Ashenauer,  17  Cal.  578. 
40Boin  V.  Heath,  6  How.   (U.   S.)  228. 

HI  Civil  Code,  §  102;  Meyer  v.  Kinzer,  12  Cal.  251;  Smith  v.  Smith, 
Id.  224;  73  Am.  Dec.  rm. 

42  Huston  V.  Curl,  8  Tex.  242;  Chapman  v.  Allen,  15  id.  278; 
Claihorne  v.  Tanner,  18  id.  60;  Dominguez  v.  Lee,  17  La.  290; 
Fisher  v.  Gordy.  2  La.  Ann.  763;  Webb  v.  Peet,  7  id.  92. 


365  HUSBAKD   AND    WIFE.  §§  467-470 

ment  that  the  property  is  the  separate  property  of  the  married 
woman  is  not  bad  on  demiirrer.^^ 

§  467.  Services  of  wife  before  marriage.  The  husband  is 
properly  joined  with  the  wife  in  an  action  for  services  performed 
by  her,  and  the  action  brought  therefor,  previous  to  marriage.^'* 

§  468.  When  husband  may  join.  When  a  married  woman 
is  a  party,  her  husband  must  be  joined  with  her,  except  in 
special  cases.'*^  And  even  in  these  special  cases  it  is  not  obliga- 
tory on  the  wife  to  sue  alone.^® 

§  469.  When  she  may  sue  alone.  In  actions  concerning  her 
separate  estate,  she  may  sue  alone,  as  if  she  were  a  feme  solc^"^ 
So  in  Illinois,  under  the  act  of  1861,  p.  24.'*®  So,  also,  in  New 
York,  under  the  Code  of  Procedure,  section  114.  Under  the 
new  Code  of  Procedure  in  New  York,  section  450,  a  married 
woman  appears,  prosecutes,  or  defends  alone  or  joined  with 
other  parties,  as  if  she  were  single.  So,  also,  by  the  laws  of 
Pennsylvania.^^  So,  also,  under  the  laws  of  Texas.^°  A  mar- 
ried woman  may  sue  alone  in  actions  against  her  husband."^'^ 

§  470.  When  she  can  not  sue  alone.  The  wife  can  not 
bring  suit  in  her  own  name  on  a  contract  which  the  law  does 
not  authorize  her  to  make.^^    Nor  to  recover  the  homestead.^^ 

43  Spies  V.  Accessory  Transit  Co.,  5  Duer,  6G2;  Lippman  v. 
Petersburgh,  10  Abb.  Pr.  254. 

44  Van  Maren  v.  Jolinson,   15  Cal.  310. 

45  Code  Civ.  Pro.,  §  370. 

4C  Van  Maren  v.  Johnson.  15  Cal.  310. 

47  Code  Civ.  Pi'o.,  §  370;  and  see  §  155,  ante;  Evans  v.  De  Lay,  81 
Cal.  103;  Sclnvarzo  v.  Mahoney,  97  id.  131.  But  a  husband  may  be 
joined  as  plaintiH"  with  his  wife  in  such  action.  Spargur  v.  Heard, 
90  Cal.  221. 

48  See  Emerson  v.  Clayton,  32  111.  493. 

40  See  Goodyear  v.  Tfunibaugh.  13  Penn.  St.  480;  Cummlngs'  Ap- 
peal, 11  id.  275;  Sheidle  v.  Weislilee,  ^(^  id.  1.34;  Long's  Adm'r  v. 
Whlfe'8  Adm'r.  5  .T.  J.  Marsh.  230. 

CO  Mflntire  v.  Chajjpell,  2  Tex.  .378;  O'Krien  v.  Ililburn,  0  id.  297. 

f'l  Kashaw  v.  Kashaw,  3  Cal.  312. 

52  Snyder  v.  Webb,  3  Cal.  R3. 

63  Poole  v.  Cerrard.  n  Cal.  71;  05  Am.  Dec.  481;  Cuiod  v.  Cuiod, 
14  Cal.  500:  70  Am.  Dec.  440;  but  see  Cal.  Code  Civ.  Pro.,  §  370, 
subd.  1. 


§^471-473  FOUMS   OF   COMPLAINTS.  366 

Nor  for  ilaiuagos  for  a  personal  iiijury.^"*  The  question  of  the 
ri"^htii  of  niarriod  women  is  regulated  by  the  statutes  of  the 
several  states,  llenee  the  authorities  referred  to  have  little 
application,  except  in  the  states  where  such  laws  are  in  force, 
or  the  decisions  were  made.  In  Illinois,  whenever  a  wife  joins 
with  her  husband,  her  interest  must  appear.^^ 

§  471.   Against  a  married  woman,  as  sole  ti'ader. 
Form  No.  98. 
[Title.] 
The  ])laintiir  complains,  and  alleges: 

I.  That  the  defendant  is  the  wife  of  one  A.  B. 

II.  That  on  the day  of ?  by  a  decree  of  the 

superior  court,  in  and  for  the  county  of ,  in  this  state, 

the  defendant  was  decreed  a  sole  trader;  and  at  the  time  of 
making  the  note  hereafter  mentioned,  the  defendant  was,  and 

still  is,  a  sole  trader,  carrying  on  business  as    

at 

III.  That  on  the day  of ,  18.  .  .,  at , 

the  plaintiff  sold  and  delivered  to  the  defendant,  at  her  request 

of  the  value  of dollars,  which  were  used  by 

the  defendant  in  her  said  business,  as  sole  trader. 

IV.  That  in  consideration  thereof,  the  defendant,  as  sole 
trader,  made  her  promissory  note,  of  which  the  following  is  a 
copy.     [C'opy  note.] 

V.  That  she  has  not  paid  the  same. 

[Demand  of  Judgment.] 

§  472.  Separate  property.  The  letters  received  by  a  married 
woman  from  her  first  and  second  husband,  before  her  marriasre 
with  the  latter,  are  her  separate  property  —  like  jewels  —  and 
her  gift  of  them  to  her  daughter  is  valid  as  against  her  hus- 
band.*^^ 

S  473.  Sole  trader.  A  complaint,  in  an  action  to  recover  a 
debt  from  a  married  woman,  which  charges  that  she  is  a  sole 
trader  under  the  statute,  is  sufficient,  withoiit  any  averment 
of  facts  showing  that  the  debt  was  contracted  in  the  particular 
business  which  she  had  declared  her  intention  to  carry  on." 

M.«;hpMon  V.  Uncle  Ram,  18  Cal.  .526;  MeFadden  v.  Railway  Co., 
87  r.al.  404;  and  see  §  l.").o,  ante. 
•'••'•2  Blark.   12.^0. 

r-^nripsby  V.  Brofkinridfre.  2  Bush,  480;  92  Am.  Dec.  509. 
67  Melcher  v.  Kuliland.  22  Cal.  C23. 


367  HUSBAXD  AXD  WIFE.  §§  474-476a 

§  474,  Sole  trader,  averment  of.  An  averment  in  the  com- 
plaint that  the  defendant,  a  married  woman,  who  carried  on 
a  separate  business,  represented  at  the  time  of  making  the 
contract  that  it  was  for  the  use  of  such  business,  is  sufficient 
on  demurrer.^^  If  the  contract  was  not  in  fact  for  the  uses  of 
such  business,  it  should  appear  by  way  of  defense.^^ 

§  475.    The  same,  on  contract  generally. 

Form  No.  pp. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  [State  marriage  as  in  previous  form.] 

II.  [State  cause  of  action.] 

III.  That  the  property  hereinbefore  mentioned  was  acquired 
by  her  as  sole  trader,  and  has  ever  since  been  her  sole  property. 

[Demand  of  Judgment.] 

§  476.  Facts  to  be  alleged.  By  the  decisions  of  the  courts 
in  Xew  York,  it  seems  that  it  is  still  necessary,  in  an  action 
against  a  married  woman,  to  allege  in  the  complaint  the  facts 
creating  her  peculiar  liability,  for  an  act  relating  to  her  sepa- 
rate estate,  or  relating  to  trade  carried  on  by  her  for  her  own 
benefit.«o 

§  476a.  Complaint  against  wife  as  trustee  of  husband.  In  an 
action  by  a  creditor  cf  the  husband  against  the  wife,  as  trus- 
tee of  the  former's  interest  in  land  held  in  her  name,  to  com- 
pel a  conveyance  to  the  husband  of  his  interest  therein,  in 
order  that  it  may  be  subjected  to  the  payment  of  his  debts  to 
the  plaintiff,  an  allegation  of  the  husband's  insolvency  is  not 
necessary.^^ 

68  Coster  V.  Isaacs,  Ifi  Abl).  Pi-.  328. 

T'O  Coster  v.  Isaacs,  10  Abb.  Pr.  328.  For  the  substance  of  a 
ronii)laint  apainst  a  married  woman  as  sole  trader,  see  Gouldlng  v. 
r>avidson.  20  X.  Y.  0O4;  and,  loss  fully,  id.,  25  How.  Pr.  4.S3. 

R^  DIckerman  v,  Abrahams,  21  Barb.  .HM;  Baldwin  v.  Kimmel, 
10  Abb.  Pr.  3.>3. 

61  O'Connell  v.  Taney,  IG  Col.  353;  25  Am.  St.  Rep.  275. 


CHAPTER  VI. 

INFANTS. 

§  477.   By  an  infant,  suing  by  g-eneral  guardian^ 
Form  No.   lOO. 

[Title.] 


A.  B.,  au  lufant,  by  C.  I).,  bis  Guar- 
dian, riaiutilf, 
against 
E.  F.,  Defendant. 


The  plaintiff  complains,  and  alleges: 

I.  That  he  is  under  tlie  ago  of  twenty-one  years. 

II.  That  on  the    .\    day  of    ,   18..,  at 

the  above-named  C.  D.  was  duly  appointed  by 

the court  of  the county,  state  of 

California,  guardian  of  the  property  and  person  of  the  plaintiff. 

III.  [State  the  cause  of  action.] 

[Demand  of  Judgment.] 

§  478.   By  an  infant,  suing  by  guardian  ad  litem. 

Form  No.   loi. 
[Title.] 


A.  B.,  an  Infant,  by  C.  D.,  his  Guar- 
dian ad  litem,  Plaintiff, 
against 
E.  F.,  Defendant. 


The  plaintiff  complains,  and  alleges: 

I.  That  he  is  under  the  age  of  twenty-one  years,  td-wit,  of 
the  age  of years. 

II.  That  on  the day  of ,  18. .,  at , 

the  above-named  C.  D.  was  duly  appointed  by  the   

court  of  the  county  of ,  state  of  California,  the  guar- 
dian of  the  above-named  A.  E.,  for  the  purposes  of  tliis  action. 

III.  [State  the  cause  of  action.] 

[Demand  of  Judgment.] 


369  IXFANTS.  §§  479-481 

§  479.  Actions  by  or  against  infants  should  be  brought  in  the 
name  of  their  general  guardian,  or  by  their  guardian  ad  litem} 
A  guardian  appears  in  the  action  simply  to  manage  and  take 
care  of  the  interests  of  the  ward  or  infant  for  whom  he  ap- 
pears, and  does  not  thereby  become  a  party  to  the  action.^  A 
judgment  rendered  against  an  infant,  in  which  no  guardian 
ad  litem  has  been  appointed,  is  not  for  that  reason  void;^  and 
a  judgment  rendered  against  him  in  an  action  in  which  he  has 
appeared  by  an  attorney  will  be  upheld  as  fully  as  though  he 
had  appeared  in  person.'* 

§  480.  Appointment  of  guardian.  Where  the  will  appoints 
a  guardian,  there  is  no  necessity  for  any  letters  of  guardian- 
ship.^ The  court  has  no  right  to  appoint  a  guardian  ad  litan, 
for  an  infant  defendant,  till  the  defendant  is  properly  brought 
before  the  court.*^  But  where  his  interests  require  it,  the  court 
will  appoint  such  a  guardian  even  though  the  minor  may  have 
a  general  guardian.'^  The  provisions  of  sections  9  and  10  of 
the  California  Civil  Practice  Act  (Code,  372,  373),  relative  to 
the  appointment  of  guardians  ad  litem,  where  infants  are  parties, 
only  apply  where  there  is  no  general  guardian,  or  where  he 
does  not  act.® 

§  481.  Appointment,  how  and  when  must  be  alleged  In  New 
York,  where  the  plaintiff  is  an  infant  suing  by  guardian,  the 
complaint  shall  contain  an  ailegation  of  the  appointment  of 
the  guardian,  and  it  shoidd  be  stated  in  a  traversable  form.'' 

1  Cal.  Code  Civ.  rrc.  §  372;  N.  Y.  Code  Civ.  Pro.,  §  460:  see 
Richardson  v.  Loupe.  80  Cal.  491;  Western  Lumber  Co.  v.  Phillips, 
94  id.  TA. 

2  0'Slif'a  v.  Wilkinson.  9,')  Cal.  4.54. 

3  Enieric  v.  Alvarado.  i'A  Cal.  (MXl;  Kemp  v.  Cook,  18  Md.  130; 
79  Am.  Dec.  081. 

4  Chihls  v.  Lauterman,  103  Cal.  387;  42  Am.  St.  Rep.  121. 
B  Norris  v.   Harris.   IH  Cal.  205. 

TJray  v.  Palmer,  9  Cal.  OIG;  and  see  McCloskoy  v.  Sweeney.  GO 
Id.  53. 

7  Cronfier  v.  Piiyiiiin.l.  l<)  r;il.  029:  Kiiicric  v.  .Mvarado,  04  id.  000. 

ft  Pox  v.  Minor.  .''.2  f":il.  119;  91  Am.  Deo.  .50f;;  Spear  v.  Ward. 
20  Cal.  070. 

f'lliilbfMt  v.  Yoim^'.  13  How.  Pr.  414;  Grantman  v.  Thrall, 
44  Pari).  173;  .see.  also,  Stanley  v.  Chappoll,  8  Cow.  23.*.  So  whore 
an  Infant  sufs  by  a  jmardian  ad  litem  as  provided  in  section  372  of 
the  California  Code  of  Civil  Procedure,  the  complaint  must  allege 
the  due  appointment   of  the  guardian   since   the  appointment  of 

YoL.  T— 47 


g  48:;i  FouMs  dk  ioMi'LAixT.s.  370 

buck  appoinliiK'iu  inusi  W'  allogcil  with  corlaiiity  as  to  time, 
place,  ujul  power  of  llu'  nppoiutiuont.^"  But  an  allegation 
that  the  ajtpointnioiit  was  made  on  the  |)laintiH"s  application  is 
imj)lietl  Uy  the  averment'  that  the  guardian  was  "duly  ajD- 
poiuted."  When,  however,  a  eomplaint  was  entitled,  "J.  G., 
by  J.  (i.,  his  (iuardian,  v.  (i.  T.,"  and  eonimencod  thus:  "The 
phiintiir,  complaining,  states,"  etc.,  but  contained  no  allegation 
that  the  plaintill*  was  an  infant,  under  the  age  of  twenty-one 
years,  or  that  the  guardian  was  appointed  by  any  court,  it  was 
held  bad  on  demurrer,  for  the  reason  that,  while  it  showed  that 
the  plaintiff  appeared  by  guardian,  it  did  not  show  that  the 
guardian  was  duly  appointed,  so  as  to  authorize  such  appear- 
ance.-'^ If  the  allegation  be  deemed  too  general,  the  objection 
can  not  be  taJven  by  demurrer.  The  remedy  is  by  motion  to 
make  it  more  definite.^^ 

In  California,  however,  in  an  action  against  infants,  neither 
the  petition  for  the  appointment  of  a  guardian  ad  litem,  nor  the 
order  making  the  same,  need  appear  on  the  judgment-roll. 
Such  appointment  may  be  made  on  an  application  ore  tcnus  in 
open  court,  as  well  as  in  writing,  and  where  the  record  is  silent 
as  to  the  manner  of  appointment,  the  regnlarity  thereof  will  be 
presumed.^* 

§  482.  Actions  by  general  guardian.  A  general  guardian  can 
not  sue  in  his  own  name  to  recover  money  due  the  infant. 
Such  actions  must  be  brought  in  the  name  of  the  infant,  by 
his  guardian.^'  In  an  action  by  an  infant,  a  general  guardian, 
designated  in  the  complaint  as  a  guardian  ad  litem,  is  of  no  im- 
portance, if  the  body  of  the  complaint  shows  him  to  be  a  gen- 

STioh  guardian  is  a  traversaililo  fact,  and  must  be  stated  in  order 
that  it  may  J>e  traversed.    Crawford  v.  Neal,  .50  Cal.  321. 

10  Stanley  v.  Cliappell,  8  Cow.  235;  Hulbert  v.  Young,  13  How.  Pr. 
413. 

11  Polly  V.  Saratoga  &  Washington  R.  R.  Oc,  J>  Barb.  449;  People 
ex  rcl.  Haws  v.  Walker,  2  Abb.  Pr.  421;  People  ex  rel  Crane  v. 
Ryder,  12  N.  Y.  433. 

12  Stanley  v.  Chappell,  8  Cow.  2?,r>\  Hulbert  v.  Young,  13  How.  Pr. 
413:  Orantman  v.  Thrall,  44  Rarb.  173. 

13  Sere  v.  Coit.  5  Abb.  Pr.  481.  Where  a  bill  Is  brought  on 
behalf  of  infant  complainants  by  their  "  next  friend,"  it  will  be 
Iirfsiiined  that  the  next  friend  was  duly  ai)pointed  by  the  court, 
and  leave  given  to  file  the  bill.    Bent  v.  Railway  Co.,  3  N.  Mex.  158. 

n  Knierie  v.   .\lvarado,  04  Cal.   ~>2^. 

If'  Spear  v.  Ward,  20  Cal.    670;  Fox  v.  Minor,  32  id.  119. 


371  INFAXTS.  §§  483-486 

eral  guardian.^*'  In  an  action  by  a  guardian,  to  recover  from 
his  ward's  estate  for  services  rendered  in  a  suit  at  law,  it  must 
be  alleged  that  the  employment  of  the  plaintiff  was  a  reason- 
able and  proper  expense  incurred  by  the  guardian." 

§  483.  Disaffirmance  of  deed.  Where  an  infant  conveys  his 
land,  and  afterwards,  on  coming  of  age,  would  avoid  the  deed 
and  recover  possession,  he  must  before  suit  make  an  entry  upon 
the  lands,  and  execute  a  second  deed  to  a  third  person,  or  do 
some  other  act  of  equal  notoriety  in  disaffirmance  of  the  first 
deed,  or  an  action  can  not  be  maintained.^^  His  act  of  dis- 
affirmance must  be  averred  in  the  pleading,  and  is  necessary  to 
be  proved.  The  want  of  this  allegation  makes  the  complaint 
fatally  defective. ^^ 

§  484.  Infant  feme  covert.  Under  the  California  statutes, 
the  disability  of  infancy  attaches  as  well  to  a  feme  covert  under 
age,  as  to  a  feme  sole,  subject  to  the  act  of  1858,  p.  108,  which 
makes  married  women  under  eighteen,  and  married  with  the 
consent  of  their  parent  or  guardian,  of  full  and  lawful  age.^*^ 

§  485.  Actions  by  infants  in  Ohio  and  Illinois.  In  Illinois 
minors  may  bring  suits  in  all  cases  whatever,  by  persons  they 
mav  select  as  their  next  friend,  who  must  file  a  bond  for  costs 
that  may  accrue.^i  In  Ohio  the  action  must  be  brought  by 
the  guardian  or  next  friend  of  the  infant,^^  who  is  liable  for 
all  costs.^  In  a  joint  suit  by  husband  of  age,  and  wife  a  minor, 
no  guardian  for  the  wife  is  necessary.^'* 

5  486.  Partition.  Duardians  ad  litem  appointed  to  represent 
an  infant  in  suits  in  partition,  have  no  power  to  admit  away 
by  their  answer  tlio  rights  of  the  infants,  as  it  is  not  a  matter 

i«  Sp<'ar  V.  Ward,  20  Cal.  070. 
iTCaldwfll  v.  Younfr,  21   Tex.  800. 

IS  PfK)l  V.  Mix.  17  Wend.  110;  .''.1  Am.  Deo.  2S.5;  Dnininlck  v. 
Mlrhacl,  4  Sandf.  420. 

19  Voorhlps  V.  VoorhlPS.  24  Barb.  inO;  see.  also.  Civil  Code. 
5§  3.'»,  30  and  37.  As  to  what  arts  will  amount  to  attirmance,  see 
Henry  v.  Root.  33  N.  Y.  .''.20. 

20  Ma^fe  V.  Wolsli,  18  Pal.  1.'.".  This  statute  is  not  now  In 
torce.    As  to  disnfflrm.anfc  of  <lrod  l).v  infant,  see  5  Ohio,  251. 

21  Sratps.  Treat,  and  Stat.  .".2. 

22  Ohio  Code,  §  30. 
2.1  Id..  ?  31. 

24  Cook  V.  Rawdon.  0  How.  Pr.  -."..".:  HnllxTt  v.  Newell,  4  Id.  93. 


§§  487-491  FOK.MS   OF   COMPLAINTS.  'dH'Z 

within  the  scope  oi'  their  appoiutinent.-^  They  have  power 
to  deleiid  lor  the  ini'aiit  ijoiely  against  the  claim  set  up  i'or 
partition  of  the  eonunou  estate.'*' 

g  487.  Promissory  notes.  The  promissory  note  ol  an  ini'ant 
is  voidable,  not  void.*^ 

§  488.  Special  obligation  of  ancestor.  Where  the  infant  was 
sued  upon  a  special  obligation  of  the  ancestor,  chargeable  upon 
the  inheritance,  he  might  pray  that  the  proceedings  be  stayed 
imtil  he  should  attain  his  majority.  This  privilege  is  con- 
fined to  the  heir  alone.^  In  Ohio  it  is  held  that  in  an  action 
against  an  infant  for  the  specific  performance  of  an  alleged  con- 
tract with  his  ancestor,  he  is  entitled  to  a  day  in  court  after 
coming  of  age  to  show  cause  against  the  decree,  and  if  an  abso- 
lute decree  be  taken  against  him,  it  will  be  error. ^-^  In  the  same 
case,  it  was  held  that  the  right  of  parol  demurrer,  or  staying 
proceedings  until  the  infant  attained  his  majority,  was  abolished 
by  statute;  but  that  the  right  of  the  infant  to  a  day  in  court 
after  coming  of  age  does  not  depend  upon  the  existence  or  non- 
existence of  the  right  of  parol  demurrer. 

§  489.  Trover.  Infancy  is  no  bar  to  an  action  of  trover  for 
conversion  of  goods.^" 

§  490.  Wages,  An  infant,  after  the  death  of  his  father,  can 
not  recover  his  wages  for  services  performed  in  the  lifetime  of 
his  father,  under  a  contract  made  with  the  father.^^ 

§  491.  Wrongs.  Infancy  is  no  defense  to  an  action  founded 
on  fraud  and  falsehood  of  the  party  pleading  it.^^ 

26  Waterman  v.   Lawrenco,   19  Cal.   210;   79  Am.    Dee.   212. 

26  Id. 

2T  Young  V.  Boll.  1  Cranch  C.  C.  .S42:  Tneker  v.  Moreland,  10  Pet. 
(U.  R.)  .-)8;  Hastings  v.  Dollarhide,  24  Cal.  19.5;  Kendrick  v.  Neisz, 
17  Col.  500. 

2«.Toyfe  V.  MoAvoy,  31  Cal.  273;  89  Am.  Dee.  172. 

20  Long  V.  Mulford,  17  Ohio  St.  485;  93  Am.  Dec.  G38;  see  Thomp- 
son V.  Railway  Co.,  3  N.  Mex.  269 

aovasse  v.  Smith,  G  Craneh,  220;  Fish  v.  Ferris.  5  Duer.  49; 
Rchunemann  v.  Paradise,  40  How.  Pr.  420;  Manufacturing  Co.  v. 
Jarobs,  21   N.  Y.  Rupp.  1000. 

31  Roby  V.  Lyndall,  4  Craneh  C.  C.  351. 

32ratts  V.  Phnlen.  2  How.  Pr.  .370;  see  Cal.  Civil  Code,  §  41; 
Klee  V.  Boyer,  108  Ind.  472;  58  Am.  Rep.  53. 


CHAPTER  VII. 

INSAXE   PERSONS. 

§  492.  By  guardian  of  an  insane  person,  or  person  of  unsound 
mind. 

Fonn  No.   loi. 

[Title.] 


O.  D.,  an  Insane  Pei-son  (or  Person 
of  Unsound  Mind),  by  A.  B.,  his 
Guardian,   Plaintiff, 
against 
E.    F.,    Defendant. 


The  plaintiff  complains,  and  alleges: 

I.  [State  the  cause  of  action.] 

II.  That  on  the day  of ,  18. .,  at  the  county 

of ,  the  superior  judge  of  said  county  [or  city  and 

county],  state  of  California,  upon  the  petition  of ,  and 

after  due  notice  and  hearing,  adjudged  the  said  C.  D.  to  be  an 
insane  person  [or  incapalile  of  taking  care  of  himself  and  man- 
aging his  property]. 

III.  That  afterward  on  the  same  day  [or  on  the day 

of ,  18.  .  .],  at  said  county  [or  city  and  county],  said 

superior  judge  [or  court  J  appointed  the  plaintiff  guardian  of 
the  person  and  estate  of  the  said  C.  D.;  that  he,  this  plaintiff, 
has  given  hond  as  required  by  law,  and  still  and  now  is  such 
guardian  of  the  said  C.  D.,  as  aforesaid. 

[Demand  of  Judo.mkxt.] 

%  493.  Appointment  of  guardian.  T^pon  petitioji  undor  oath, 
hy  any  relative  or  friend  of  any  insane  person,  or  any  person 
who  by  old  age  or  other  cause  is  mentally  incompetent,  the 
probate  judge  shall,  aflfr  bearing  and  examination,  appoint  a 
guardian  of  bis  person  and  estate.'  And  every  such  guardian 
fehall  appear  for  and  represent  his  ward  in  all  legal  suits  and 

1  Cal.   Codo  Civ.  Pro..  S   1704. 


§§  494-497  FORMS  OF  complaints.  374 

proooodings,  unloss  anolhor  person  is  appoiiiU'd  I'or  that  pur- 
pose, as  guardian  or  next  friend.^ 

S  494.  "  Duly  appointed."  The  word  "  duly,"  as  used  in  the 
New  York  forms,  may  be  omitted,  as  jurisdiction  of  the  Pro- 
bate Court  will  be  presumed.^ 

§  495.  Limitations.  The  probate  of  a  will  shall  be  conclu- 
sive, if  not  contested  within  one  year,  but  in  the  case  of  infants, 
married  women  and  persons  of  unsound  mind  alike,  a  period  of 
one  year,  after  their  respective  disabilities  are  removed,  is 
granted  by  the  Probate  Act.'* 

§  496.  Attack  on  authority  of  guardian.  Letters  of  guar- 
dianship of  an  insane  person  can  not  be  questioned  in  a  col- 
lateral proceeding,  and  are  admissible  in  evidence.^ 

§  497.   Against  the  guardian  of  an  insane  person. 
Form  No.  103. 
[Title.] 


A.  B.,  Plaintiff, 
against 

O.  D.,  Guardian  of  E.  F.,  an  Insane  ^ 
Person    (or    Person    of    Unaound 
Mind),   Defendant. 


The  plaintiff  complains,  and  alleges: 

I.  [State  a  cause  of  action  against  an  insane  person.] 

II.  That  afterwards  [or  on  the  ....  day  of ,  18.  . . ], 

the  said  E.  F.  was  adjudged  by  the court  to  be  a  per- 
son of  unsound  mind. 

III.  That  the  defendant  was,  on  the day  of , 

18. . .,  appointed  by  the  said  court  guardian  of  the  person  and 
estate  of  the  said  E.  F.;  that  he,  the  defendant,  accepted  said 
appointment,  and  is  now  such  guardian. 

2  Id..  §  1769;  see  Redmond  v.  Peterson,  102  Cal.  595:  41  Am.  St. 
Rep.  204:  .Justice  v.  Ott,  87  Cal.  .530:  Boyd  v.  Dodson,  66  id.  360. 

3  See   Bloom   v.    Burdick.    1    Hill,    1.30;   .37   Am.    Dec.   299.    As   to 
presumplion  of  jurisdic-tion,  see  ".Jurisdiction,"  chap.  2. 

4  Cal.  Code  Civ.  Pro..  S  1.3.33. 

6  Warner  v.  Wilson,  4  Cal.  310. 


375  INSANE  PERSONS.  §§  498-502 

Wherefore  the  plaintiff  demands  judgment  for dol- 
lars, with  interest  from to  be  paid  out  of  the  estate  of 

the  said  E.  F.,  in  the  hands  of  the  defendant. 

§  498.  Ejectment.  The  guardian  of  a  lunatic,  etc.,  has  no 
estate  in  his  lands;  and  an  action  of  ejectment  for  the  lunatic's 
land  must  be  brought  in  the  lunatic's  name. 


6 


§  499.  Equity  siiits.  If  any  person  has  a  legal  or  equitable 
claim  against  the  estate  of  an  insane  person,  which  is  under  the 
care  of  the  guardian,  who  refuses  to  allow  the  same,  he  must 
apply  to  chancery  by  petition.  He  will  not  be  permitted  to  sue 
at  law  except  under  the  sanction  of  chancery.'^ 

§  500.  Habitual  drunkard.  In  New  York,  where,  pending 
a  suit  brought  by  a  creditor  to  reach  the  assets  of  his  debtor, 
the  latter  is,  by  proceedings  previously  commenced  in  another 
court,  adjudged  to  be  an  habitual  drunkard,  and  a  committee  is 
appointed  of  his  estate,  the  court  in  which  the  former  suit  is 
pending  can  not  properly  proceed  to  final  judgment.^  The 
rules  of  comity  always  observed  toward  each  other  by  courts  of 
concurrent  jurisdiction  would  prevent  the  granting  of  a  decree 
as  prayed  for.® 

§  501.  Lunatic.  A  suit  in  equity  for  the  benefit  of  a  lunatic 
must  be  brought  in  his  own  name.^*^ 

§  502.  Necessary  averment.  A  complaint  against  the  guar- 
dian of  an  habitual  drunkard  must  state  with  ])articularity  the 

e  retrie  v.  Shopinaker.  24  Weiul.  8r>.  For  history  of  the  judicial 
custody  of  lunatics,  see  Brown's  Case,  1  Abb.  Pr.  108;  S.  C,  4 
Duer,  G13.  The  guardian  of  an  inconipotent  person  is  ueillier  a 
Dfcessary  or  a  proi)er  party  to  an  action  ui)on  a  note  and  mortgage 
assigned  by  the  incompetent  person  to  the  plaintiff.  Hedmond  v. 
Peterson.  102  Oal.  ->m;  41  Am.  St.  Rep.  2(^)4.  Insufficient  allegation 
of  want  of  tniderstanding.       See  More  v.  Cnllcins,  8.^)  Cnl.  177. 

7  Matter  of  Ilellcr,  :i  Paige.  100;  Ri-asher  v.  Van  Cortlnndt.  2 
Jolins.  Cli.  242;  Wi.llianis  v.  Estate  of  Caiiieron,  2(!  Harl).  172. 

«  f„  re  Ilplle.  :{  Paige  Cli.  HXl;  Clarke  v.  Dunham.  4  l)en.  202;  /;;  re 
Hopper,   .')   Paige  Cli.  480;   Robertson   v.    Lain,  0   Wend.  (>40. 

e  Niblo  V.   Harrison.  0   Rosw.  008. 

lOMcKillip  V.  McKillip,  8  Riirb.  .''►."2;  Lane  v.  Schermerhorn,  1 
Hill.  97;  Petrie  v.  Shoemaker,  24  Wend.  8.^;  Davis  v.  Carpenter, 
12  How.  Pr.  2,87;  Re  McLaughlin,  Clarke'  Ch.  113. 


K  503  FOKMS    OF    COMl'LAINTS.  370 

court   and    autlu>rity   1)}'    which    the   debtor   was    declared  an 
habitual  drunkard." 

§  503.  Personal  actions.  And  there  is  no  distinction  between 
actions  concerning  his  realty  and  those  relating  to  his  personal 
estate,  since  all  actions  nuist  be  broiight  in  the  name  of  the 
lunatic.'-  In  Alabama,  a  person  may  sue  an  adnlt  lunatic  for 
necessaries  furnished  him,  and  is  entitled  to  proceed  in  the 
ease  upon  the  appointment  of  an  attorney  for  the  defendant, 
although  there  is  no  guardian  ad  Utcm}^ 

11  Hall  V.  Taylor,  8  How.  Pr.  428. 

12  Lane  v.  Schernierhorn,  1  Hill,  07;  INIcKilllp  v.  McKillip,  8 
Barb.  552. 

^^Ex  parte  Northington,  37  Ala.  49G;  79  Am.  Dec.  07. 


CHAPTER  VIII. 

PARTNERS. 

S  504.  Title  and  commericeinent  of  complaint  by  partners. 

Form  No.   104. 
[Title.] 


E.  F.  and  G.  H.,  Partners,  under 
the  firm  name  of  "  A.  B.  &  Co.," 
Plaintifes, 

agaiitst 

E.  F.  and  G.  H.,  Partners,  under 
the  firm  name  of  "  E.  F.  &  Co.," 
Defendants.. 


J 

A.  B.  and  C.  D.,  tlie  plaintiffs  in  the  above-entitled  action, 
complain  of  E.  F.  and  G.  H.,  partners,  under  the  firm  name  of 
"  E.  F.  &  Co.,"  and  allege: 

I.   [State  cause  of  action.] 

[Demand  of  Judgment.] 

§  605.  Actions  between  partners.  As  a  general  rule,  Jiu  ac- 
tion at  law  can  be  maintained  l)otween  partners,  pending  the 
relation  as  such,^  although  a  stipulation  by  one,  for  the  benefit 
of  the  others,  may  be  enforced  by  them  or  their  trustees,  as 
against  a  limited  partner.^  They  can  not  sue  one  another  for 
any  of  the  business  or  undertakings  of  the  firm.^  They  can 
only  ask  for  a  dissolution  and  an  accounting.  One  ])artner  can 
not  sustain  an  action  against  his  copartner  for  the  delivery  of 
j)ersonal   property  belonging  to   the   copartnershiji."*     But  one 

1  Koninfrslmrt'  v.  Launifz,  1  K.  1>.  Sniilli,  LM.''*;  Swpet  v.  Morrison, 
10.3  N.  V.  2:\r>;  Iloff  V.  Koircrs.  07  .Miss.  20S:  in  Am.  St.  Uep.  301. 

2  Robinson  v.  Mdntosli,  .''.  K.  T).   Sinltli,  221. 

8  Buckley  v.  rarlislc,  2  f'al.  420;  Stone  v.  Fouse,  .3  id.  202;  Barn- 
fltead  V.  Emi)fro  MIn.  Co.,  ft  id.  300;  Koninpsburp:  v.  Tvaunltz,  1 
E.  D.  Smith,  2ir.;  but  see  Boblnson  v.  Mcintosh,  3  id.  221. 

4  Buckley  v.  Carlisle,  2  Cal.  420. 

48 


§§  50(1-508  FOUMS   OF   COMPLAINTS.  378 

partiKT  luav  ^uo  his  c'o])artncr  on  a  nolc'^'  Or  one  partner  may 
sue  anotlier  at  law  for  damages  eaused  by  a  premature  dissolu- 
tion on  breach  of  copartnership  articles,"  and  after  division  of 
a  epcciiic  fund  he  may  sue  for  his  allotted  portion."^  So,  one 
partnership  firm  may  sue  another,  having  a  mutual  partner,  for 
an  ascertained  balance,^'*  and  such  mutual  partner  may  elect 
whether  to  be  plaiutiif  or  defendant  in  the  action. 

§  506.  Authority  of  partner.  In  California  a  partner  can 
not  make  an  assignment  of  the  partnership  property  to  a  cred- 
itor, or  in  trust  for  creditors,  nor  dispose  of  the  good-will  of  the 
business,  nor  dispose  of  the  whole  of  the  partnership  property 
at  once,  unless  it  consists  entirely  of  merchandise,  nor  do  any 
act  which  would  make  it  impossible  to  carry  on  the  ordinary 
business  of  the  partnership,  nor  confess  a  judgment,  nor  sub- 
mit a  partnership  claim  to  arbitration,  unless  his  copartners 
have  wholly  abandoned  the  business  to  him,  or  are  incapable 
of  acting.®  Nor  can  one  member  of  a  partnership  bind  his  co- 
partner by  a  promissory  note  for  a  partnership  demand,  made 
after  the  dissolution  of  the  partnership.^^ 

§  507.  Arbitration.  In  Vermont  it  was  held  that  a  partner 
has  not  authority,  as  such,  to  submit  partnership  matters  to 
arbitration,  so  as  to  make  the  aw'ard  binding  on  the  firm.''^  A 
partner  may  submit  his  own  interest  in  the  firm  to  reference, 
but  he  can  not  thereby  bind  the  other  partners.^^ 

§  508.  Individual  interest.  The  interest  of  a  copartnership 
can  not  be  given  in  evidence  on  an  averment  of  individual 
interest;  nor  an  averment  of  copartnership  interest  be  supported 
by  a  special  individual  contract. ^^ 

c  Van  Ness  v.  Forrest,  8  Cranch,  .30;  and  see  Bull  v.  Coe,  77  Cal. 
54;  11  Am.  St.  Rep.  235;  Bank  of  British  N.  A.  v.  Delaiield,  126  N.  Y. 
410. 

6Bagley  v.  wSmitli.  10  N.  Y.  489;  61  Am.  Dec.  75G. 

7  Crosby  v.  Nichols,  3  Bosw.  450;  Ross  v.  Cornell,     45  Cal.  133. 

8  Cole  V.  Reynolds,  18  N.  Y.  74. 

» Civil  Code,  §  S430;  see  Corrie  v.  Commercial  Co.,  90  Cal.  84; 
Quinn  v.  Qninn,  81  id.  14. 

10  Curry  v.  White,  51  Cal.  530;  see,  also,  Stokes  v.  Stevens,  40 
Id.  391. 

11  Maiiln  y.  Thrasher,  40  Yt.  460. 

iSKartliaiis  v.   Ferrer,   1  Pot.  222;  see.   also,   l>yle  v.   Rodgers,  5 
Wheat.  394. 
13  Graves  v.  Boston  Mar.  Ins.  Co.,  2  Cranch,  215. 


379  PAETNEKS.  §§  509,  510 

{  509.  Joint  assumpsit.  Where  suit  is  brought  on  a  part- 
nership transaction,  the  complaint  stating  a  contract  with  the 
partner  sued,  evidence  may  be  given  of  a  joint  assumpsit}* 

§  510.  Judgment  against  partners  —  service  on  one.  A  part- 
nership consisting  of  several  persons  must  sue  or  be  sued  by 
their  names  at  length,  and  not  in  the  name  of  the  firm.^** 
Such  is  the  common-law  rule;  but,  "  when  two  or  more  per- 
sons, associated  in  any  business,  transact  such  business  under 
a  common  name,  whether  it  comprises  the  names  of  such  per- 
sons or  not,  the  associates  may  be  sued  by  such  common  name, 
the  summons  in  such  cases  being  served  on  one  or  more  of  the 
associates;  and  the  judgment  in  the  action  shall  bind  the  joint 
property  of  all  the  associates,  in  the  same  manner  as  if  all  had 
been  named  defendants  and  had  been  sued  upon  their  joint 
liability,"  is  the  form  of  a  provision  found  in  the  California 
Code  of  Civil  Procedure.^^  Similar  provisions  exist  in  the 
Codes  or  statutes  of  many  of  the  states.  The  Supreme  Court 
of  the  United  States  has  refused  to  give  a  judgment  thus  ob- 
tained against  a  partner  not  served  with  process  any  extra-tei'- 
ritorial  force,  on  the  ground  that  the  judgment  was  obtained 
without  due  process  of  law."  In  several  states  the  validity  of 
such  a  judgment  has  been  either  tacitly  assented  to,  or  expressly 
upheld  by  the  courts.^^  In  California,  the  earlier  cases  upheld 
the  constitutionality  of  such  a  judgment,^^  but  this  position 
has  been  since  receded  from,  and  such  judgments,  at  least  as 
against  tlie  partner  not  served,  are  considered  void.^ 

14  Barry  v.  Foyles,  1  Pet.  (U.  S.)  311. 

15  Bentley  v.  Smith,  3  Cal.  170;  see  §  308,  ante. 
i6Cal.  CkxJe  Civ.  Pro.,  §  388. 

17  Mason  v.  F:idred.  0  Wall.  239;  Public  Works  v.  Columbia 
Collope,  17  id.  .^.27:  D'Arfy  v.  Ketchum,  11  How.  10.">;  Phelps  v. 
Brewer.  0  Cvish.  P,i)();  .'>7  Am.  IH'O.  .W;  Hall  v.  Lanniiifr.  01  TT.  S.  100. 

is.Tolmson  v.  I.on^'h.  22  Minn.  203;  Lahey  v.  Kiniron.  13  Abb.  Pr. 
102;  Harper  v.  Brink.  24  N.  J.  L.  333;  Martin  v.  Rising,  2  Par. 
O.  I..  .T.  r.O:  rininiond  v.  Nast.  44  Tox.  114;  Kidd  v.  Brown,  2  How, 
Pr.  20;  Whitmorf  v.  Sliiverick.  3  Nev.  2SS. 

10  WelHh  V.  Kirkpatrlfk.  .30  Cal.  203;  89  Am.    Dor.  H.^>. 

20Tay  V.  Hawloy,  .39  Cal.  9."i.  In  this  rase  the  court,  per  Rhodes, 
J.,  said:  "The  statnte  i)rovldes  that  the  'joint  property'  of  all 
the  defendants  may  be  taken  in  execution  for  the  satisfaction  of 
the  JudKiiiPnt:  l)ut  ncme  of  tl)e  c.M8e.s  in  tliis  court  defines  such 
Joint  profierty.  *  •  ♦  Tii  Mnson  v.  Denison,  l.'^  Wend.  64.  it 
is  said  lliat  tlie  term  :ii'j'Ii''^  'o  Hie  iiroiici-t y  wliicli  one  defciidiiiit 


§511 


FORMS    OK    COMPLAINTS.  380 


§  511.  Liability  of  partners.      The  whole  of  tlie  partners  are 
liable  on  a  Avananty  by  one  of  the  members,  on.  sale  of  firm 

uiijihi  apply  to  the  satisfaction  of  Uie  debt,  without  consulting 
bis  coooutractor.  Aciepting  the  restriction  iudicated  in  tliat  case, 
or  even  limiting  tlic  meaning  of  •  joiut  property"  to  partnership 
property  of  the  pei-sons  alleged  to  be  joint  del)tors,  we  are  utterly 
unable  to  see  how  a  judgment  that  is  to  be  enforced  against  the 
Interest  in  such  property  of  a  person  who  has  not  been  served 
with  process,  and  has  not  appeared,  can  be  maintained.  It  is  a 
cardinal  principle  of  jurisprudence  that  a  judgment  shall  not  bind 
or  eonclude  a  man,  either  in  respect  to  his  person  or  property,  unless 
he  lias  had  his  day  in  court.  No  person  shall  be  deprived  of  life, 
liberty  or  property  without  due  process  of  law,  says  the  Constitution; 
but  this  principle  Is  older  than  written  constitutions,  and  without 
invoking  the  constitutional  declaration,  every  person  may,  as  a 
matter  of  common  right,  insist  that  he  be  heard  in  his  own 
defense  before  judgment  passes  which  binds,  charges,  or  injuriously 
affects  his  person  or  estate.  It  is  no  answer  to  say  that  the  judg- 
ment affects  only  the  joint  property  of  the  defendants  —  property 
that  either  of  the  debtors  might  apply  to  the  satisfaction  of  the 
common  debt  —  for  that  assumes  that  the  defendants  are  joint 
debtors,  and  that  may  be  to  the  defendant  who  is  not  served  the 
vital  point  of  the  controversy.  He  may  be  ready  to  admit  every 
allegation  of  the  complaint,  except  that  he  is  a  party  to  the  con- 
tract; or  he  may  even  admit  the  contract,  and  yet  be  ready,  if  an 
opportunity  were  presented,  to  make  a  successful  defense  on  the 
ground  of  fraud,  failure  of  consideration,  payment,  accord  and 
satisfaction,  etc.  The  defendant  who  is  served  may  be  ignorant 
of  the  defenses  upon  which  his  codefendants  would  rely,  or  he 
may.  either  negligently  or  purposely,  omit  to  present  them. 
And  whatever  his  answer  may  be,  he  only  answers  for  himself; 
and  there  is  nothing  in  the  law  regulating  the  acquisition  or 
disposition  of  joint  property,  which  confers  upon  one  joint  owner 
the  right  to  defend  actions  for  his  fellows.  Unless  it  can  be  shown 
that  such  property  is  under  the  ban  of  the  law,  a  judgment  which 
subjects  to  execution  the  interest  of  a  person  who  has  had  no  oppor- 
tunity to  be  heard  in  the  action,  can  not  be  upheld  without  violating 
principles  which  lie  at  the  base  of  all  judicial  proceedings."  In 
the  latter  part  of  this  opinion  the  judge  stated  that  "  the  provisions 
of  the  Code,  which  provide  for  summoning  a  defendant  who  had 
not  originally  been  served,  to  show  cause  why  he  should  not  be 
bound  by  the  judgment,  furnish  the  exclusive  mode  by  which  he 
can  be  bound  by  tlie  judgment,  and  such  provisions  necessarily 
Imply  that  he  is  not  already  bound."  In  an  action  against  co- 
pai-tners  on  a  partnership  obligation,  where  the  names  of  all  the 
Individuals  composing  the  firm  are  set  forth  both  in  the  caption 
and  the  body  of  the  complaint  and  summons,  with  the  addition  that 
they  are  doing  business  under  a  firm  name,  judgment  can  not 
bo   rendered   under   section    388  of   the    Code   of   Civil    Procedure 


381  PARTNEES.  §§  512-514 

property.-^  One  partner  is  liable  to  third  parties  for  iujuiies 
occasioned  by  negligence  of  another.^  All  are  liable  for  the 
fraud  of  one.^ 

I  512.  Partnership,  what  constitutes.  Actual  intention  is 
accessary  to  constitute  a  partnership  inter  sc.  There  must  be 
a  joint  undertaking  to  share  in  the  profit  and  loss.  Each  party 
must,  by  the  agreement,  in  some  way  participate  in  the  losses 
as  Mell  as  the  profits.^^  An  agreement  to  divide  the  gross 
earnings  does  not  constitute  the  parties  to  it  partners.^  A 
partnership  may  exist  as  to  third  persons,  when  there  is  no 
partnership  as  between  the  persons  thus  liable.^** 

§  513.  Partnership  property.  The  plaintiff  must  recover  on 
the  allegations  in  his  complaint,  if  at  all,  and  if  the  complaint 
fails  to  aver  that  the  property  was  partnership  property,  the 
judgment  of  the  court  should  not  find  that  fact.^'^ 

§  514.  Special  partner.  In  California,  the  general  partners 
may  sue  and  be  sued  alone,  in  the  same  manner  as  if  there  were 
no  special  partners.^® 

against  those  defendants  who  have  not  been  served  with  process 
and  have  not  appeared,  but  a  judgment  entei'ed  in  such  action 
against  those  who  have  been  served  will  not  be  vitiated  as  to  them 
because  the  other  defendants  are  included  therein.  Davidson  v. 
Knox,  G7  Cal.  143. 

21  Sweet  V.  Bradley,  24  Barb.  549. 

22  Cotter  V.  Bettuer,  1  Bosw.  490;  and  see  Tucker  v.  Cole,  54  Wis. 
538;  Hess  v.  Lowry,  122  Ind.  225;  17  Am.  St.  Rep.  355. 

23  Getty  V.  Devlin,  54  N.  Y.  403. 

24  2  Kent's  Com.  2,3-28;  Hazard  v.  Hazard,  1  Story,  373;  Denny 
v.  Capot,  6  Met.  82;  Muzzy  v.  Whitney,  10  .Johns.  228;  Champion  v. 
Bostwick,  18  Wend.  181;  Smith  v.  Moynihan,  44  Cal.  53;  Wheeler 
v.  Farmer,  38  id.  203;  see  Sindclare  v.  Walker,  137  111.  43;  31  Am.  St. 
Rep.  3.53;  .Toues  v.  Call,  93  N.  C.  170. 

2fi  Pattison  v.  Blancluird,  (',  N.  Y.  191;  Stoiy  on  Part.,  §  34,  and 
cases  filed  in  note  3;  Wli«'eler  v.  Farmor,  supra- 

20  Sco  Ontario  Bank  v.  Hennessey,  48  N.  Y.  .545;  Mnnliattan  Brass 
&  Mftr.  Co.  V.  Sears.  45  id.  797;  0  Am.  Rep.  177;  McStea  v.  Mat- 
thews. .50  .\.   \.  icr;. 

27  Sterling;  v.  H.-inson.  1  Cal.  480.  Allc^'ation  as  to  jiartnerslnp 
In  lands.    See  Bates  v.  Babcock,  95  Cal.  479;  29  Am.  St.  Rep.  J33. 

28  Civil  Code,  §  2492. 


§515 


rOKM8    OF    COMPLAINTS.  38^ 


S  515.   Suit  for  dissolution  and  accounting. 

i''or)n  No.   103. 

[Title.] 
Tlio  plaintilT  complains  of  the  defendant,  and  alleges: 

I.  That  on  or  about  the day  of j  18.  ., 

the  plaintiir  and  doJ'endant,  at ,  entered  into  and 

formed   a  copartnership  for  the  purpose   of    [state   nature   of 

business],  under  tlie  lirm  name  and  style  of ,  and 

tluit  they  thereafter  entered  upon  and  continued  to  transact 
such  copartnership  business  under  their  firm  name. 

II.  That  since  the  commencement  of  said  copartnership,  the 
defendant  has  wrongfully,  and  without  the  assent  of  the  plain- 
till',  applied  some  of  the  money  or  receipts  and  profits  of  their 
said  business  to  his  own  use,  and  by  reason  thereo.f  has  become 
indebted  to  said  copartnership,  and  impeded  and  injured  the 
business  thereof. 

III.  Tliat  the  plaintiff  has  repeatedly  requested  the  defend- 
ant to  pay  said  copartnership  the  money  so  received  by  him 
and  misappropriated  as  aforesaid,  or  to  account  to  said  firm 
therefor,  but  that  the  defendant  has  heretofore  neglected  and 
refused,  and  still  does  neglect  and  refuse,  so  to  account,  and 
has  threatened  to  continue  to  collect  the  copartnership  debts 
and  appropriate  the  same  to  his  own  use. 

Wherefore  the  plaintiff  prays: 

I.  That  said  copartnership  may  be  dissolved,  and  an  account- 
ing taken  of  all  the  dealings  and  transactions  thereof. 

II.  That  the  property  of  the  firm  be  sold,  and  the  firm's 
debts  and  liabilities  be  paid  ofF,  and  the  surplus,  if  any,  divided 
between  the  plaintiff  and  defendant,  according  to  their  respect- 
ive interests,  and  for  such  other  relief  as  may  be  just,  together 
with  the  costs  of  this  suit.^^ 

29  A  plaintiff,  wlio  bases  his  right  to  an  accounting  upon  an  al- 
legation of  a  partnership  l>etween  himself  and  the  defendant,  is 
not  entitled  to  such  relief  upcm  the  mere  proof  of  a  tenancy  in 
common.  Noonan  v.  Nunan,  76  Cal.  44.  Insufficient  complaint  in 
an  action  for  an  accounting  and  settlement  of  a  partnersliip.  See 
Cuyamaca  Granite  Co.  v.  Paving  Co.,  95  Cal.  252.  Action  for  an 
accounting  and  dissolution  of  a  partnership.  Consult  Wulff  v. 
Superior  Ct.,  110  Cal.  215;  Rowe  v.  Simmons,  11?.  id.  fi88.  Aftion 
to  dissolve  partnership  between  corporations.  See  Ivoftus  v.  Fisclier, 
114  Cal.  l.'?l.  An  action  for  the  dissolution  of  a  partnership  can  only 
be  brought  at  the  instance  of  a  partner.  Behlow  v.  Fischer,  102 
Cal.  208. 


3b3  PARTNERS.  §§  516,  517 

§   516.    For  accounting'  after  dissolution. 
Form  No.   io6. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  [Allege  formation  and  purposes  of  partnership  as  in  pre- 
ceding form.] 

II.  That  on  or  about  the day  of ,  18.  .,  by  the 

mutual  consent  of  said  partners,  the  said  firm  was  dissolved. 

III.  That  at  such  time  the  defendant  promised  and  agreed 
with  the  plaintiff  to  account  for  and  pay  over  to  the  plaintiif 
his  proportionate  share  of  all  moneys  which  had  been  previously 
collected  by  the  defendant,  on  account  of  said  firm,  and  also 
to  collect  the  debts  due  said  firm,  and  render,  from  time  to 
time,  to  the  plaintiff,  on  demand,  full  statements  of  the  debts 
aue  to  said  firm,  and  the  payments  made  on  account  thereof, 
and  to  pay  over  to  the  plaintiff  his  full  share  of  the  assets  of 
6aid  firm. 

IV.  That  prior  to  and  since  the  dissolution  of  said  firm  the 
defendant  has  collected  large  sums  of  money,  amounting  to 

the  sum  of dollars,  more  or  less,  on  account  of  the 

debts  due  to  said  firm,  and  has  applied  the  same,  and  the  whole 
thereof,  to  his  own  use,  and  has  neglected  and  refused,  and 
still  does  neglect  and  refuse,  to  account  with  and  pay  to  the 
plaintiff  his  proportionate  share  of  the  assets  of  said  firm,  so 
collected  as  aforesaid,  or  any  part  thereof,  although  often  re- 
quested by  the  plaintiff  so  to  do. 

[Demand  for  relief  as  in  preceding  form,  omitting  prayer 
for  dissolution. 1 

I  517.   Against  partners  —  averring  partnership. 

Form  No.  107. 

[State  and  County.]  [Court.] 

1 

John  Doe,  PlalrtlfT,  | 

against  \. 

A.  B.  and  O.  D.,  Defendants.        I 


The  plaintiff  complains  of  the  defendants,  and  allcfres: 
I.  That  at  the  time  hereafter  mentioned,  the  defendants  were 
copartners,  and   doing  business  as   merchants   or  traders   [or 

otherwise]  at  the  city  of ,  under  the  firm  name 

of  A.  B.  &  Co. 
IT.  [State  cause  of  action.] 

[Demand  of  Judgment.] 


g  518  FOUMS   OF   COMPLAINTS.  384 

§  518.  Allegation  of  partnership.  The  same  allegation  will 
ilu  wlioiv  the  2)laintiil's  are  partners,  substituting  the  word 
'*  plaintiUs '■  lor  "  del'endants."  Where  the  partnership  is  a 
material  i'act,  it  should  be  alleged.^"  A  distinct  averment  oH 
partnership  between  the  plaintitls  is  only  necessary  when  the 
right  of  action  depends  upon  the  partnership.^^  When  a  Joint 
ownership  or  joint  contract  will  enable  them  to  recover,  it  is 
no  objection  to  their  complaint  that  their  partnership  is  not 
pleaded.^^  Correct  pleading  requires  that  parties  intending  to 
Mip  as  partners  should  allege  the  fact  of  their  copartnership 
in  the  body  of  the  pleadiug.^^  And  a  showing  in  the  caption 
of  the  complaint  that  the  plaintill's  are  partners  is  not:  indis- 
pensable, if  in  the  body  of  the  complaint  it  be  specially  averred 
that  the  plaintiffs  are  in  fact  partners,  and  it  appears  from  the 
facts  alleged  that  the  obligation  sued  on  was  created  in  favor 
of  the  partnership.^'*  So,  an  allegation  of  partnership  is  only 
necessary  when  the  cause  of  action  depends  on  its  existence, 
and  where  an  action  on  an  implied  contract  for  goods  furnished 
by  a  firm  is  brought  in  the  name  of  the  partners,  and  it  is 
alleged  that  they  jointly  furnished  the  goods,  it  is  not  neces- 
sary to  allege  the  partnership.^^  A  complaint  in  an  action 
against  a  firm,  which  alleges  a  distinct  and  independent  in- 
debtedness against  each  member  thereof,  does  not  state  a  cause 
of  action. ^^  But  where  the  complaint  in  an  action  on  a  promis- 
sory note,  after  alleging  that  the  defendants  at  all  the  times 
therein  mentioned  were  partners,  averred  that  "  the  said  de- 
fendants, copartners  as  aforesaid,"  executed  the  notes  in  ques- 

30  See  Parties,  ante. 

31  Loper  V.  Welch,  3  Duer,  644;  and  see  Oechs  v.  Cook,  id.  tOl. 

32  For  a  sufficient  though  informal  averment  of  partnership,  see 
Anable  v.  CV)nklin,  26  N.  Y.  470;  Anable  v.  Steam  Engine  Co., 
IG  Abb.  Pr.  286. 

33  Fryer  v.  Breeze,  16  Col.  323.  Sufficient  averment  of  partner- 
ship.   See  Pfister  v.  Wade,  69  Cfll.  133. 

34  Wise  v.  Williams,  72  Cal.  .544;  and  see  Re  Tfamazzina,  111  id. 
4&8. 

35  Clark  V.  Wick,  25  Oreg.  440;  and  see  Lee  v.  Orr,  70  Cal.  398; 
Wood  V.  Fithian.  24  N.  .T.  L.  .33.  Under  section  8  of  the  California 
Insolvent  Act  of  1880,  a  petition  in  involuntaiy  insolvency  describ- 
ing the  petitioning  creditors  as  finns  or  copartnerships  is  siifficiont, 
although  the  names  of  the  persons  comprising  the  firms  are  not 
given.    Matter  of  Russell,  70  Cal.  132. 

3C  Faust  v.  Smith,  3  Col.  App.  505. 


385  PARTNEKS.  §§  519,  520 

tion,  this  was  held  a  sufficient  averment  that  the  notes  were 
executed  by  the  defendants  as  copartners.^^  An  objection  to  a 
complaint  against  copartners,  that  the  names  of  the  defendants 
and  the  allegation  of  partnership  do  not  appear  in  the  body 
of  the  complaint,  is  not  well  taken  where  the  same  matters 
are  fully  stated  in  the  caption.^* 

§  519.  Dormant  partner.  At  common  law  a  dormant  part- 
ner need  not,  and  ought  not  to  be  Joined  in  a  suit  by  the  firm.^^ 
So  if  a  dormant  partner  be  unknown  in  the  contract  of  a  lease, 
it  was  held  that  he  need  not  be  joined  as  defendant.^"  They 
have  the  right,  but  are  not  bound,  to  sue  all  under  such  cir- 
Ciimstances.*^  Where  the  name  of  a  dormant  partner  was 
fraudulently  concealed,  an  injunction  to  restrain  a  levy  on 
partnership  property  was  set  aside. 


42 


520.   By  a  surviving  partner. 

Form  No.   io8. 

[State  and  County.]  [Court.] 

1 

John  Doe,  Plaintiff,  j 

against 
Richard  Roe,  Defendant. 


The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  hereinafter  mentioned,  the  plaintiff  and 
one  C.  D.  were  partners,  doing  business  as  merchants  or  traders 

[or  otherwise]  at  the  city ,  under  the  firm  name 

of  "  John  Doe  &  Co." 

IT.  [Statement  of  cause  of  action.] 

8T  Alpers  V.  Schanimol,  7.1  Cal.  .590. 

3S  IMcrson  v.  Fuhnnauu,  1  Ck)l.  App.  187. 

30  Loveck  V.  Shaftoe,  2  Esp.  4()S;  7  T.  R.  :?fil;  Lloyd  v.  Arohbowle, 
2  Taunt.  324;  1  Chit.  PI.  9;  Clarkson  v.  Carter,  3  Cow,  84;  Clark  v. 
Miller,  4  Wend.  028;  N.  Y.  Dry  Dock  Co.  v.  Treadwell,  19  Wend. 
525.  But  the  rule  would  appear  to  be  otherwise  under  the  Code 
of  New  York.  See  Secor  v.  Keller,  4  Duer,  416;  and  compare 
Belshaw  v.  Colie.  1   K.  D.  Smith,  213. 

40iinrll»nt  v.  Post,  1   Rosw.  2.S. 

41  I'.if.wn  V.  Binlsall,  29  Rarb.  549. 

42  Van  Valon  v.  RusHell.  13  Barb.  590. 

Vol.  1—49 


KS  r)"'!-.')^;}  rOK.MS    OF    COM  PLAINS  TS.  380 

CO 

111.  That  on  the   day  of  ,  18.  .,  at 

,  said  C.  I),  died,  leaving  the  plaintiff  the  sole 

survivor  of  the  said  lirm.''^ 

[Demand  of  Judgment.] 

§  521.   Duties  of  surviving  partner.       The  surviving  partner 

is  to  wind  up  the  ailairs  of  the  partnership,  and  pay  its  debts 
out  of  tlie  assets,  if  sufficient,  and  divide  the  residue,  if  any, 
among  those  entitled  to  it."*^  And  a  claim  of  the  surviving 
partner  against  the  estate  of  the  deceased  partner  is  contingent 
and  does  not  become  absolute  till  the  partnership  affairs  are 
settled. 

§  522.  Partnership  debt.  An  action  at  law  does  not  lie 
against  the  personal  representative  of  the  deceased  partner.  It 
must  be  brought  against  the  survivor.*^  So,  when  one  of  two 
joint  covenantors  dies.*^ 

§  523.  Promise,  how  stated.  In  an  action  for  a  debt  which 
accrued  to  the  partnership  before  the  death  of  one  of  its  mem- 
bers, that  fact,  the  death  of  the  member,  and  survivorship  must 

43  This  form  is  necessary  only  when  the  cause  of  action  accrued 
to  the  partnership. 

44  Gleason  v.  White,  34  C'al.  258.  A  surviving  partner  has 
power,  under  section  24G1  of  the  California  Civil  Code,  to  prosecute 
a  claim  for  unliquidated  damages  in  favor  of  the  partnership,  and, 
under  section  1585  of  the  same  Code,  has  power  to  settle  the 
business  of  the  partnership,  which  includes  everything  that  may 
be  necessary  to  wind  up  its  affairs.  Berson  v.  Ewing,  84  Cal.  89. 
He  is  entitled  to  sue  in  his  representative  capacity  for  the  amount 
due  the  partnership,  and  in  his  own  name  for  the  amount  due  to 
himself  individually.  The  respective  demands  may  be  imited  in 
the  same  action,  but  .should  be  separately  stated.  Quillen  v.  Arnold, 
12  Xev.  234.  The  surviving  partner  is  a  proper  but  not  indis- 
pensable party  to  an  action  to  foreclose  a  mortgage  made  by  a 
deceased  partner  of  his  individual  property  to  secure  the  firm 
Indebtedness.  London,  etc.,  Bank  v.  Smith,  101  Cal.  415.  The 
heirs  of  a  deceased  person  are  not  the  proper  parties  to  maintain 
an  action  for  an  accounting  and  settlement  of  a  partnership  between 
the  decedent  and  a  surviving  partner  or  his  representatives,  and 
they  have  no  legal  capacity  to  do  .so.  The  surviving  partner  must 
account  with  the  executor  or  administrator  of  the  deceased  partner. 
Robertson  v.  Burrell,  110  Cal.  568. 

45  Grant  v.  Shurter,  1  Wend.  148. 

46  Gere  v.  Clark,  6  Hill,  350. 


3b7  paiit>;eks.  §§  5:^-i-5;^ti 

be  alleged,  unless  there  has  been  an  accounting  with  the  sur- 
vivor.*^ 

§  524,  Right  of  possession.  A  surviving  partner  has  the  ex- 
clusive right  of  possession,  and  the  absolute  power  of  disposi- 
tion of  tlie  assets  of  the  partnership.^^ 

§  525.  Services.  He  is  not  entitled  to  pay  for  his  services 
in  merely  winding  up  the  affairs  of  the  concern."*^  But  if  he 
expends  his  time  and  labor  in  the  care  and  management  of  tlie 
partnership  property,  by  which  its  value  is  enlianced,  he  should 
receive  compensation  for  the  same. 

§  526.  Survivor,  liabilities  of.  The  survivor  of  a  partner- 
ship may  be  charged  on  a  debt  of  the  firm,  contracted  before 
the  death  of  the  other,  and  without  averring  the  partnership, 
death,  etc.***^  And  the  personal  representative  of  a  deceased 
partner  can  not  be  joined  with  him,  unless  the  survivor  be 
insolvent.**^  "Where,  after  the  death  of  one  partner,  on  account 
stated  between  defendant  and  the  copartnership,  admitting  bal- 
anre  due  for  goods  sold  in  the  lifetime  of  deceased,  the  sur- 
vivor may  recover  it  on  insitnul  computasscnt,  without  averring 
the  death  of  the  other  partner.'^^ 

47  Holmes  v.  De  Camp,  1  Johns.  36;  Tom  v.  Goodrich,  2  id. 
213. 

48  Allen  V.  Hill,  16  Cal.  113;  see  Cal.  Code  Civ.  Pro.,  §  1585. 

49  Griggs  v.  Clark,  23  Cal.  427. 

CO  Goelet  v.  McKlnstry,  1  Johns.  Cas.  40.5;  compare  Holmes  v. 
De  Camp,  1  Johns.   34. 

61  Voorhls'  Ex'rs  v.  Child,  17  X.  Y.  3.^;  Moorehouse  v.  Ballou, 
16  Barb.  289;  Higgins  v.  Freeman,  2  Duer,  650. 

62  Holmes  V.  De  Camp,  1  John.s.  34;  3  Am.  Dec.  293. 


CHAPTER  IX. 

PUBLIC   OFFICEKS. 

S  527.   By  or  against  public  officers. 

Form  No.   lop. 

[State  and  County.]  [Court.] 

1 

A.  B,,  Comptroller  of  the  State  of  I 

California,  Plaintiff,  I 

against  (" 

C.    D.,    Defendant. 


The  plaintiff  complains,  and  alleges: 

I.  That  he  is  [comptroller  of  the  state  of  California]. 

II.  [State  the  cause  of  action,  etc.] 

[Demand  of  Judgment.] 

§  528.  Actions  against  officers.  That  in  an  action  against  the 
collector  of  the  customs  for  refusing  a  clearance,  a  count  stat- 
ing that  the  plaintiff  was  the  owner  of  the  vessel,  laden  with 
a  cargo  of  a  certain  value,  the  allegation  is  sufficient  as  respects 
ownership  of  the  cargo. ^ 

§  529.  Acts  of  deputy.  In  an  action  against  a  sheriff  for 
MTongful  acts  of  deputy,  it  is  not  essential  that  the  complaint 
should  allege  that  he  is  sheriff,  nor  the  acts  complained  of  were 
committed  hy  his  deputy.^  The  act  of  the  deputy  should  he 
alleged  as  that  of  the  sheriff.^ 

§  530.  Official  character  must  be  averred.  The  official  char- 
acter must  be  averred  in  the  body  of  the  complaint.*     A  very 

1  See  Bas  v.  Steele,  .3  Wasli.  C.  C.  381. 

2  Poinsett  v.  Taylor.  0  Cal.  78;  Curtiss  v.  Fay,  H7  Barb.  64; 
see  Greig  v.  Clement,  20  Col.  167;  §  30.5,  ante. 

•■?  Pfoplo  V.  Ten  Eycl<,  13  Wend.  448;  Hirsch  v.  Rand.  39  Cal.  318; 
Campbell  v.  Phelps,  17  Mass.  246. 

4  Compare  Gould  v.  Glass,  19  Barb.  18.5,  with  Smith  v.  Levinus, 
8  N.  Y.  472:  Ogdensburgh  Ban  kv.  Van  Rensselaer,  6  Hill,  240; 
Delafield  v.  Kinney,  24  Wend.  345;  Fowler  v.  Westervelt,  17  Abb. 
Pr.  .59:  40  Barb.  374. 


389  PUBLIC  OFFICERS.  §§  531-533 

short  averment,  if  clear  in  its  terms,  is  sufficient;^  though  a 
special  authority  must  be  averred  with  fullness  sufficient  to 
make  it  clearly  apparent.^  But  a  sheriff  suing  as  such,  need 
not  state  in  his  complaint  how  he  acquired  his  office.  It  is 
enough  to  show  that  he  is  sheriff  in  factJ 

§  531.  Oflacial  capacity,  how  averred.  That  "the  plaintifl 
is  sheriff  of  the  city  and  county  of  San  Francisco,"  is  a  suffi- 
cient allegation  of  his  official  character.*  Where  the  title  gives 
tlje  names  of  the  pLnntiffs  with  the  description  "  commissioners 
of  highways,''  and  in  the  body  of  the  complaint  it  is  aveiTed 
"  that  the  plaintiffs,  commissioners  of  highways,  complain," 
th('  cliaraclpr  in  which  they  complain  is  sufficiently  indicated.® 

§  532.  Title.  A  party  suing  as  a  public  officer  should  sue 
in  his  own  name,  with  the  addition  of  his  name  of  office. ^"^  For 
the  words  in  brackets  in  the  above  form  any  others  may  be  sub- 
stituted which  will  properly  designate  the  title  and  jurisdiction 
of  the  officer. 

§   533.   By  Bheriff  suing  in  aid  of  attachment. 
Form  No.   iio. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  he  is  the  sheriff  of  the  [city  and]  county  of , 

duly  elected,  qualified,  and  acting  as  such. 

IT.  That  on  the day  of ,  18 .  . ,  a  war- 
rant of  attachment  was  issued  out  of  this  court,  and  to  him 
directed  and  delivered,  as  such  sheriff,  in  an  action  against 
A.  B.,  whereby  he  was  directed  to  attach  and  keep  all  the.  prop- 
erty of  said  A.  B.  in  bis  county. 

r-  Smith  v.  Lfvinus,  H  \.  Y.  472;  Hoot  v.  Price,  2a  How.  Vv.  372; 
Ilallctt  V.  Iliiirower,  'M',  Harb.  't'M. 

«Id. 

7  Kelly  V.  Breiisiiiff.  a.3  Barb.  12.3;  atfirminp:  R.  C,  S2  id.  OOl. 
An  avprnient  that  a  fortain  person  acted  as  iind(T-sheriff^  without 
allegation  tliat  he  wronjifnlly  acted  as  such,  implies  11i;it  lie  was 
under-sherifr  dc  jure  as  well  as  de  facto-    People  v.  OtTo,  77  Cal.  4.''). 

«  Kelly  V.  Breiisinjr,  .32  liarb.  cm-,  afflrnied  in  3.3  Id.  123. 

e  Fowler  v.  Westervelt,    10  Barb.  .'rr4. 

10  Palpe  V.  Fazackerly.  3<',  Barb.  3!I2;  Tnisteeg  Fire  Dejiarlment 
r.f  Brooklyn  v.  Acker,  2'">  IIow.  Pr.  2<;;;;  I'owler  v.  Westervelt,  40 
r.arb.  384;  17  Abb.  Pr.  .".it. 


§§  534,  535  FORMS  of  complaints.  390 

III.  'I'lint  the  defciuhuit  then  had  in  his  possession 

doUars  boUmging  to  A.  i>.  |or  was  iiuk'bted  to  the  said  A.  Ji. 
in  the  sum  of doHarsj. 

IV.  That  on  the  day  of ,  18.  .,  the 

plaintiif  made  due  service  of  said  warrant  by  delivering  to  and 
leaving  with  said  defendant  a  copy  thereof,  with  a  notice  show- 
ing the  property  levied  on;  whereupon  the  plaintiff  hecame  en- 
titled to  receive  from  the  defendant,  and  he  became  answerahle 
to  the  plaintiff  for  said  dollars,  which  the  de- 
fendant refuses  to  pay  over  to  the  plaintiff,  or  to  account  to 
him  therefor;  to  his  damage  dollars." 

[Demand  of  Judgment.] 

§  534.  Right  of  action.  The  sheriff  who  levies  an  attach- 
ment has  not  the  right  of  property  in  the  debt,  and  can  not 
maintain  an  action  in  his  own  name  for  the  recovery  thereof. ^^ 
An  indemnity  hond  to  the  sheriff  to  retain  property  seised 
under  attachment,  is  an  instrument  necessary  to  carry  the  power 
to  sue  into  effect. ^^ 

§  535.   Against  sheriff,  for  not  executing  process. 
Form  No.   iii. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  of  issuing  the  execution  hereinafter  men- 
tioned, the  defendant  was  the  sheriff  of  the  county  of  Sacra- 
mento, in  this  state. 

II.  That  on  the    day  of   ,  18.  .,  at 

,  judgment  was  duly  given  and  made  in  an  action 

in  the   court,  in  favor  of  the  plaintiff,  against 

one  E.  F.,  for  [one  thousand]  dollars. 

III.  That  on  the  day  of  ,  18.  .,  an 

execution  against  the  property  of  the- said  E.  F.  was  issued  upon 
the  said  judgment,  and  directed  and  then  delivered  to  the  de- 
fendant as  sheriff  aforesaid. 

UTliia  form,  with  slight  cliaixpes  from  Abbott's  excellent  work 
on  forms,  is  not  applicable  under  the  Califomia  statute;  but  bein^ 
an  approved  form  under  the  statute  of  the  state  of  New  York,  is 
deemed  of  value  here.  See  Kelly  v.  Breusing,  33  Barb.  123;  affirm- 
ing S.  r...  .^2  id.  001. 

12  Sublette  v.   Melhado,   1    Cal.   105. 

13  Davidson   v.    Dallas,   8  Gal.   227. 


391  PUBLIC  OFFICERS.  §§  536-538 

IV.  That  on  that  day  the  said  E.  F.  had  [a  large  quantity 

of  general  merchandise]  in  his  store,  No First 

street,  San  Francisco,  and  owned  the  said  store  and  lot  [or  as 
the  ease  may  be],  in  the  said  county,  out  of  which  the  said 
execution  might  have  been  satisfied,  of  which  the  defendant 
had  notice. 

V.  That  he  refused  and  neglected  to  make  a  levy  under  or 
by  virtue  of  said  execution,  upon  said  property,  or  any  part 
thereof  [or  as  the  case  may  be;  and  if  he  levies  a  part,  specify 
it],  as  by  said  execution  he  was  required  to  do,  to  the  damage 
of  the  plaintiff dollars. 

[Demand  of  Judgment.] 

§  536.  Arrest,  neglecting  to  execute  order  of.  That  before 
the  return  of  said  order,  to-wit,  on,  etc.,  notice  was  given  to 
the  defendant  that  said  E.  F.  was  within  the  said  county,  and 
that  the  defendant  there  had  said  E.  F.  in  his  view  and  presence, 
so  that  if  the  defendant  had  desired  so  to  do  he  could  have 
arrested  the  said  E.  F.,  by  virtue  of  said  order;  but  the  defend- 
ant, disregarding  his  duty,  did  not  arrest  the  said  E.  F.,  and 
willfully  neglected  the  execution  of  said  order,  is  sufficient.^* 

§  537.  Averment  of  oflacial  capacity.  That  defendant  was 
sheriff,  or  acted  as  such,  is  a  sufficient  averment  of  capacity.^^ 
If  the  object  of  the  suit  is  to  establish  a  personal  and  not  an 
official  liability,  for  which  the  sheriff'  could  be  sued  while  he 
is  out  of  office,  an  averment  of  official  character  in  the  tith  is 
not  necessan,'.^® 

§  538.  Breach  of  duty.  That  although  defendant  could  have 
levied,  of  goods  of  the  execution  debtor  within  his  bailiwick, 
the  moneys  indorsed  on  the  writ,  yet  defendant,  disregarding 
his  duty,  did  not  levy  of  the  said  goods  the  moneys,  or  any  part 

14  Dlnlnny  v.  Fay,  38  Barb.  IS.  In  an  action  apainst  a  sheriff 
for  a  neglect  of  an  oflficlal  duty,  tlie  coinplainf  must  allej,^e  the 
particular  neplcct  or  omission  upon  wlildi  tlir  jilaintiff  iclies. 
Kohn  V.  rilnshaw.  17  Oroff.  r,()H. 

15  Potter  V.  Luther.  .'{  .Fohns.  4.31:  Dean  v.  r.rldlcy,  10  Wend.  2ii.'i; 
and  860  Hall  v.  Lulhcr,  1.3  Id.  401;  compare  Curtis  v.  Fay,  37  Barl>. 
64. 

ifl  Stillman  v.  Sijuirp.  1  T)('n.  r',27;  Armstrong:  v.  Garrow.  0  Cow. 
4a3:  Ovoi-ton  v.  Hudson.  2  Wasli.  (Va.)  172;  Hirsch  v.  Rand.  .30  Cal. 
31.^:  Ciirtis  V.  P^ay,  .37  Rarl>.  (Vf;  Wymond  v.  AmslKiry,  2  Col.  213; 
see  Van  Cleave  v.  Buchcr,  70  Cal.  000. 


§§539-54'^  FORMS    Ol-    COMIM.AINTS.  30x' 

thcreol',  sullifieiitly  cliiirgcs  a  broacli  of  duly,  and  implies  im- 
proper conduct  ill  Ihe  salo  of  the  goods.^^  But  the  mere  omis- 
sion of  a  do})uty  to  inform  the  shorilf  of  having  process  in  hand 
is  not  such  negligence  as  to  charge  tlie  sheriff,  in  case  a  writ 
last  in  JKind  was  executed  lirst.^** 

§  539.  Execution,  averment  of.  Jt  is  not  necessary  to  state 
the  terms  of  the  execution,  as  the  courts  take  judicial  notice 
of  the  forms  of  their  own  proceedings.  The  steps  involved  in 
the  issuance  of  the  writ  need  not  he  stated.  It  is  sufficient  to 
aver  that  it  was  duly  issued;  the  same  is  true  of  the  levy.^® 

§  540.  Damages,  how  averred.  The  measure  of  damages  for 
failure  to  execute  an  execution  is  prima  facie  the  amount  due 
on  the  execution.  If  such  amount  could  not  have  heen  col- 
lected by  the  exercise  of  due  diligence,  such  fact  may  be  sliown 
in  defense.  Special  damage  need  not  be  averred.^''  In  Illinois 
the  action  lies  where  the  officer  so  delays  in  making  a  proper 
levy  that  the  rights  of  third  parties  intervene.^^  The  damages 
on  failure  to  collect  an  execution  are  such  as  the  plaintiff  shall 
actually  suffer  by  the  sheriff's  neglect.^^  Where  the  sheriff 
accepts  an  assignment  of  a  chattel  mortgage,  the  plaintiff  in 
execution  being  ignorant  thereof,  is  not  bound  by  his  acts.^'^ 

§  541.  Notice.  The  allegation  of  notice,  though  usual,  seems 
unnecessary.""* 

§  542.  Refusal  to  make  deed.  In  an  action  against  a  sheriff 
for  special  damages,  resulting  from  a  refusal  on  the  part  of  the 
sheriff  to  make  and  deliver  to  plaintiff  a  deed  to  certain  prem- 
ises purchased  by  plaintiff  at  sheriff's  sale,  w^hen  there  is  no 

i7MiillPtt  V.  riiallis,  10  Q.  R.  2.39;  20  Law  .T.  R.  (N.  S.)  Q.  B.  161; 
15  Jur.  24.3;  Political  Code,  §  4180. 

18  Whitney  v.  Butterfield.  13  Cal.  .33.^.:  73  Am.   Dec.  .584. 

19  French  v.  Willet.  10  Abb.  Vr.  00;  First  Nat.  Bank  v.  Rogers. 
13  Minn.  407:  07  Am.  Dec.  2.30. 

20  Moore  v.  Floyd,  4  Ore?:.  101;  Ledyard  v.  .Jones,  7  N.  Y.  5.50; 
Dunphy  v.  Whipple,  25  Mich.  10;  Cloush  v.  Monroe,  34  N.  H.  381; 
Evans  v.  House,  20  Ohio  St.  488;  Roth  v.  Duval,  1  Idaho,  140: 
People  V.  Roper,  4  Scam.  .500.  That  damages  must  bo  aven*ed.  see 
?sash  V.  Whitney,  .30  Me.  341;  Commonwealth  v.  Lelar,  1  Phila.  333. 

21  Davidson  v.  Waldron.  31  111.  120;  83  Am.   Dec.   200. 
2^  French   v.    Snyder,   30   111.   .3.39;   S3   Am.    Dec.   193. 

23  Dilible  V.  Rripgs,  28  111.  48. 

24Tomlinson  v.  Rowe,  Ilill  &  D.  Supp.  410. 


393  PUBLIC  OFFICERS.  §§  643-545 

allegation  in  the  complaint  of  title,  nor  any  averment  that  in 
case  the  deed  had  been  executed,  plaintiff  would  have  been  able 
to  recover  possession  of  the  premises,  or  the  rents  and  profits, 
it  was  held  that  such  complaint  is  insufficient.^ 

§  543.  Replevin.  The  proper  mode  of  declaring  in  a  com- 
plaint against  a  sheriff  for  not  taking  sufficient  security  in 
replevin,  or  in  executing  a  writ  in  replevin,  is  stated  in  the  cases 
cited  below.^  Where  defendant  had  a  right  to  replevy,  a  com- 
plaint which  avers  that  the  marshal  neglected  to  make  the 
money  is  bad.*'^ 

§  544.  Selling  homestead.  A  complaint  against  a  sheriff  and 
his  sureties  for  selling  under  execution  the  homestead  of  plaia- 
tiffs,  which  set  out  that  the  sheriff  was  in  possession  of  a  certain 
execution  against  plaintiff,  J.  Kendall,  and  under  color  of  said 
execution  wrongfully  and  illegally  entered  upon  and  sold  cer- 
tain property,  the  homestead  of  plaintiffs,  and  averring  dam- 
ages in  the  sum  of  two  thousand  dollars,  the  value  of  the 
property,  is  insufficient,  as  the  same  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action.  No  damage  has  or  can 
result  from  such  a  sale.  If  the  property  sold  was  a  homestead, 
the  sheriff's  deed  conveyed  nothing.  The  purchaser  at  sale 
could  acquire  no  right  to  the  property,  nor  could  the  plaintiff 
suffer  any  injury.^ 

§  545.    Against  sheriff  for  neglecting  to  return  execution. 20 
Form  No.   ii2. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  of  the  issuing  of  the  exeontion  herein- 
after mentioned,  the  defendant  was  the  sheriff  of  the  county 
r>f ,  in  this  state. 

TT.  That  on  the flny  of 18 ...  in  an 

nrfion  in  the  Superior  Court  of  the  county  of   , 

in  this  state  ("or  other  rourt"|,  wherein  this  plaintiff  was  plain- 
tiff, and  one  .\.  "R.  was  flnfonrlant,  the  plaintiff  rorovorer!  a  judg- 

28Knl5:ht   v.   Fair.   12  Tal.  290. 

2«Rep  fJlbba  V.  Btill,  18  Johns.  4?..-:  Wpstor\-olt  v.  Brli.  in  Woni. 
W1. 
2T  Blspham   v,   Tnylnr.   2   >[("!, pnn.   ?'>T',. 

WKonrlnll  i<l-  Wifp  v.  Clark.  10  Tnl.  17:  70  Am.   Per.  091. 
2«.  Pee  Van  Cleave  v.  Bnrlior,  79  Cal.  GOO. 

50 


§§  S-ifJ-AiS  FOUMS    OF   COMI'LAIMTS.  3U-4 

rnent  duly  given  by  said  court  agaiiiist  the  said  A.  B.,  for 
dollars. 

III.  That  on  the  day  of  ,  18.  .,  an 

exooution  against  the  property  of  said  A.  B.  was  issued  on  said 
judgment  and  directed  and  delivered  to  the  defendant,  as  sheriff 
of  the  county  of ,  of  which  execution  the  follow- 
ing is  a  copy:     [Copy  the  execution  and  indorsement.] 

IV.  That  although  [more  than] days  elapsed 

after  delivery  of  said  execution  to  the  defendant,  and  before 
the  commencement  of  this  action,  yet  he  has,  in  violation  of  liis 
duty  as  such  sheriff,  failed  to  return  the  same,  to  the  damage 
of  the  plaintiff dollars. 

[Demand  of  Judgment.] 

§  546.  The  same  —  under  California  statute.  The  Political 
Code  of  California  provides  as  follows: 

"  If  the  sheriff  does  not  return  a  notice  or  process  in  his  pos- 
session, with  the  necessary  indorsement  thereon,  without  delay, 
he  is  liable  to  the  party  aggrieved  for  the  sum  of  two  hundred 
dollars,  and  for  all  damages  sustained  by  him."^^ 

Under  this  statute,  add  to  the  above  the  following: 
Form  No.   113. 

And  whereby,  also,  the  defendant  has  become  and  is  liable 
to  the  plaintiff  in  the  further  sum  of  two  hundred  dollars  under 
the  provisions  of  section  4179  of  the  Political  Code  of  the  state 
of  California. 

Wherefore  tho  plaintiff  demands  judgment  against  the  de- 
fendant for  the  said  sum  of  two  hundred  dollars  under  the 
provisions  of  the   statute  aforesaid,   and   the   further  sum   of 

dollars,  his  damages  so  as  aforesaid  sustained, 

and  for  costs  of  suit. 

§  547.  Issue  of  process.  Tt  is  suf^cient,  after  showing  juris- 
diction to  ippne  procof;s,  to  allege  that  it  was  issued. ^^ 

§  548.  Property.  In  nn  action  for  not  returning  an  execu- 
tion, the  complaint  need  not  aver  that  defendant  had  property 
out  of  which  the  money  might  have  been  levied.  The  gist 
of  the  action  is  the  neglect  to  return.^^  It  is  not  necessary  to 
allege  or  prove  special  damages.^' 

80  Political  Pofip,   5  4179. 

31  Frenoh  v.  Willet.  4  Bosw.  040:  S.  C,  10  Abb.  Pr.  99. 

32Pan1ee  v.  ■Robprtson,  fi  Hill.  n.W. 

23  lycrtyard  v.  Jones,  V  N.  Y.  550. 


395  PUBLIC    OFFICERS.  §§  54:9-552 

§  549.  Remedy.  Plaintiff  may  proceed  by  attachment,  or  may 
sue  for  neglect.^'*  This  action  lies,  although  the  sheriff  has 
not  been  ordered  to  make  return.^^ 

§  550.  Request.  A  request  to  return  execution  need  not  be 
alleged.^® 

§  551.  Against  sheriff,  for  neglecting  to  pay  over  moneys  col- 
lected on  execution. 

Form  No.   114. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  times  hereinafter  mentioned,  the  defendant 
was  the  sheriff  of  the  county  of  ,  in  this  state. 

II.  That  on  the    day  of    ,   18.  .,  at 

,  an  execution,  then  duly  issued,  in  form  and  effect 

as  required  by  law  against  the  property  of  one  A.  B.,  and  in 

favor  of  the  plaintiff,  upon  a  judgment  for  the  sum  of 

dollars  theretofore  duly  given  in  favor  of  the  plaintiff  against 

said  A.  B.,  in  the  Superior  Court  of  the  county  of , 

in  this  state,  was  by  the  plaintiff  directed  and  delivered  to  the 
defendant  as  such  sheriff. 

III.  That  the  defendant  thereafter,  as  such  sheriff,  collected 
and  received  upon  said  execution,  to  the  use  of  the  plaintiff,  the 
sum  of dollars,  besides  his  lawful  fees. 

IV.  That  although  [more  than]  sixty  days  elapsed,  after  the 
delivery  of  said  execution  to  the  defendant,  before  this  ac+;ion, 
yet  he  has,  in  violation  of  his  duty  a?  sheriff,  failed  to  pay  over 
to  the  plaintiff  the  amount  so  collected. 

[Demand  of  Judgment.] 

§  552.  The  same  —  under  California  statute.  The  Political 
Code  of  California  provides:  ''If  he  neglects  or  refuses  to  pay 
over  on  demand,  to  the  person  entitled  thereto,  any  money  which 
may  come  into  his  hands  by  virtue  of  his  office  (after  deducting 

s*  Rurk  V.  r'anipV>ell.  1.'  .Tolins.  4'>('>;  Rank  of  Kome  v.  Curtiss. 
1   Tim.  27:'. 

3-'>  Rnrk  v.  Campbell,  l.'>  .Tolins.  4r>(\;  Rnnk  of  Ronio  v.  Curtiss,  I 
Hill,  27.'>;  Pardee  v.  Robortson,  0     id.  .">0. 

3fl  CorairiK  v.  Southorland,  ?,  Hill,  .'"►.')2;  Flshor  v.  Pond,  2  id.  3.38; 
Howden  v.  Rtanisii,  r,  r.  R.  r^\-i:  S.  C,  00  Enp.  Com.  L.  R.  50.3. 
Nor  is  it  ppressary  to  allctrf  in  tlio  complaint  tliat  the  fees  of  the 
Bliorlff  wore  j)aid.  If  tlie  fcos  wore  not  paid,  and  tlie  writ  was  not 
served  or  rettinu-d  on  tliat  irroiind,  it  must  be  ploadod  liy  tliQ 
sherllT  as  matter  of  df-fr-nsc     V:in  r'ioavo  v.   Rnrlior,  70  Cal.  000. 


g  553 


FOIi.MS    Ol'    C'O.MI'LAINTS.  396 


hi:?  loual  i'oos),  the  aniDuiit  tlierooi',  with  Iwonty-five  per  cent. 
daiiia"otf,  aiul  interest,  at  the  rale  oi'  leu  per  cent,  per  month 
from  tlie  time  of  ilemand,  may  be  recovered  by  such  person,"^^ 
Under  this  section  neith'er  the  rate  of  interest  specified  therein 
nor  twenty-five  per  cent,  as  (himages  can  be  recovered  unless 
there  lias  been  a  demand  for  the  money  collected  prior  to  the 
commencement  of  the  suit,  and  in  such  case  the  complaint  must 
aver  such  demand  and  the  date  thereof. 

The  above  form  is  sufficient  for  the  recovery  of  the  money  re- 
ceived by  the  sherilT  and  legal  interest  from  the  time  it  should 
have  been  paid  over.  If  it  is  desired  to  recover  the  damages 
and  special  rate  of  interest  provided  for  in  the  above  section  of 
the  Code,  omit  Part  IV  in  the  above  form,  and  insert  the 
following. 

Form  No.    115. 

IV.  On  the day  of ,  18 .  . ,  the  plain- 
tiff demanded  of  the  defendant  that  he  pay  over  to  him  the 
moneys  so  received  by  him  upon  said^  execution,  as  aforesaid, 
less  his  lawful  fees  thereon,  yet  he  has,  in  violation  of  his  duty 
as  such  sheriff,  failed  and  neglected  to  pay  over  to  the  plaintiff 
the  amount  so  collected;  by  reason  whereof  the  said  defendant 
has  become  and  is  liable  to  the  plaintiff  for  the  moneys  col- 
lected as  aforesaid,  to-wit,  the  sum  of    dollars, 

together  with  twenty-five  per  cent  thereof,  as  damages  for  the 

nonpayment  thereof,  and  interest  on  the  said  sum  of 

dollars,  at  the  rate  of  ten  per  cent,  per  month  from  the  said 
day  of ,  18.  . 

Wherefore  the  plaintiff  demands  judgment  against  the  de- 
fendant for  the  said  sum  of dollars  and  interest 

thereon  at  the  rate  of  ten  per  cent,  per  month  from  the  said 

day  of ,  18..,  and  the  further  sum  of 

dollars,  being  twenty-five  per  cent,  of  said  sum 

of   dollars,  under  the  provisions  of  the  statute 

aforesaid,  and  for  costs  of  suit. 

§  553.  Against  deputy.  To  render  a  deputy  liable,  an  ex- 
press promise  must  be  shown. ^* 

3T  Political  Code,  §  41.S1.  The  plaintiff  is  not  entitled  to  recover 
the  penalty  provided  by  this  section,  if  the  demand  made  on  the 
sheriff  was  for  the  payment  of  a  larger  amount  than  the  plaintiff 
was  entitled  to.     Shnmway  v.  Leakey,  1?>  Cal.  2no. 

38Tnttle  V.  Love,  7  .Tohns.  470;  Paddock  v.  Cameron,  8  Cow.  212; 
and  see  Cxjlvin  v.  Holbrook,  2  N.  Y.  126;  affirming  S.  C,  3  Barb.  475. 


397  PUBLIC  OFFICERS.  §§  554-659 

§  554.  Delivery  of  execution.  It  is  enough  to  sliow  the  de- 
livery of  execution  without  jDioving  the  judgment.^^ 

§  555.  Demand.  In  an  action  against  a  sheriff  to  recover 
property  seized  under  process,  or  its  value  by  the  owner,  it  is 
not  necessar}^  that  the  plaintiii  should  show  affirmatively  notice 
and  demand  before  bringing  suit.  This  rule  is  now  established 
by  the  weight  of  authority.  The  early  cases  in  California  held 
the  contrary,  but  they  have  since  been  overruled.*" 

§  556.  Money  paid  over.  Where  it  is  averred  in  the  com- 
plaint that  the  money  has  been  collected,  and  that  defendant 
has  failed  to  return  the  execution,  it  will  not  be  presumed  that 
the  money  has  not  been  paid  over.  An  averment  to  this  effect 
is  essential.*^ 

§  557.  Obligation  to  pay.  So,  to  say  that  plaintiff  has  been 
obliged  to  pay  the  amount  of,  etc.,  in  consequence  of  the  negli- 
gence and  acts  of  the  defendant  in  his  office  of  under-sheriff, 
is  good,  at  least  on  general  demurrer;  ^^  even  if  process  is 
voidable.'*^ 

§  558.  Remedy.  An  action  on  the  case,  or  an  action  for 
money  had  and  received,  may  be  maintained,  at  the  option  of 
the  plaintiff.** 

§  559.  Statute  penalties.  Where  a  sheriff  fails  to  pay  over 
money  colk-cted  on  execution,  the  action  should  be  for  a  false 

39  Elliott  V.  Cronk,  13  Wend.  3.5;  and  see  1  Oow.  Tr.  322. 

40WeIlman  v.  English,  38  Cal.  583;  Boulwaro  v.  Craddock,  30 
Id.  190;  overruling  Ledley  v.  Hays,  1  id.  100;  Daumiel  v.  Gorham, 
6  Id.  44;  see.  also,  Holdridpe  v.  Lee,  3  S.  Dak.  134;  Klnonder  v. 
Lynch,  2  Abb.  App.  Dec.  .538;  Moore  v.  Murdock,  20  Cal.  514; 
Woodbury  v.  Lonqr.  8  Pick.  .543;  19  Am.  Dec.  .345;  Owings  v.  Frier, 
2  A.  K.  Mansh.  2<«:  .Tamisnn  v.  Hendricks,  2  Blackf.  94;  Hicks 
V.  Cleveland.  48  N.  Y.  S4:  fllossoi)  v.  Pole,  3  M.  &  S.  175;  Classpoolc 
V.  Younff,  9  B.  &  C.  09O:  Edwards  v.  Bridges,  2  Stark.  390;  but  see 
Cal.  Code  Civ.  Pro.,  §  OSI),  as  amended  in  1891;  Black  v.  Glasby,  97 
Cal.  4S2. 

41  Iloag  v.  Wanlfn,  .37  C.-il.  .522. 

42  Hiiclies  V.  Smith,  5  .Tolins.  108. 

43  Walden  v.  Davison,  15  Wend.  .575;  Bacon  v.  Crojisey,  7  N.  Y. 
195;  and  see  Ontario  Banlc  v.  llallctt,  8  Cow.  192;  Grosvenor  v.  Hunt, 
11  How.  Pr.  .3.55;  Girocliio  v.  Orsrr,  1   Abb.   Pr.  4.33. 

44Dygert  v.  Crane,  1  Wend.  534;  Shepard  v.  Hoit,  7  Hill,  198. 


§§  560,  t)Gl  FOKMS    Dl'    COMl'LAINTS.  398 

.iL'iuni.'''"'  The  statute  ])enalti(."t;  against  slieriH's,  for  the  non- 
pavuR'Ut  ol'  jiioiieys  collected  ou  execution,  are  only  recoverable 
when  the  sherill:  by  his  return  admits  the  collection  of  the 
money,  but  refuses  to  pay  it  over.*^ 

§  560.  Suflacient  averment.  It  is  enough  to  say  generally 
that  the  defendant  had  collected  or  embezzled,  etc.,  such  a  sum, 
which  he  had  refused,  etc.,  without  setting  forth  the  particular 
items,  which  would  lead  to  prolixity.'*'^  In  an  action  by  the 
plaintiff  in  a  writ  of  execution  against  a  sheriff  for  neglect  to 
pay  over  moneys  realized  on  such  writ  it  is  sufficient  to  allege 
in  the  complaint  the  existence  of  the  judgment  on  which  the 
execution  was  issued,  the  issuance  thereof,  the  realization  of 
the  money,  and  the  neglect  to  pay  it  over.^^  Where  the  action 
is  against  a  sheriff  for  wrongfully  seizing  and  selling  goods 
mortgaged  to  secure  an  indebtedness,  it  is  not  necessary  to 
plead  their  value  at  the  time  of  taking,  w^here  no  elements  of 
special  damage  are  alleged,  but,  in  order  to  support  a  judgment 
in  such  case,  for  the  amount  of  the  debt,  there  must  be  evi- 
dence as  to  the  value  of  the  goods  seized.^^ 

§  561.   Against  sheriff,  for  false  return. 
Form  No.   ii6. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  of  issuing  the  execution  hereinafter  men- 
tioned, the  defendant  was  the  sheriff  of  the  county  of , 

in  this  state. 

II.  That  on  the   day  of   ,  18..,  at 

,  judgment  was  duly  given  and  made  in  an  action 

in  the   court,  in  favor  of  the  plaintiff,  against 

one  G.  W.,  for  [ten  thousand]  dollars. 

III.  That  on  the  day  of  ,  18.  .,  an 

execution  against  the  property  of  the  said  G.  W.  was  issued 
upon  the  said  judgment,  directed  and  delivered  to  the  defend- 
ant, as  sheriff  aforesaid. 

4C  Egrery  v.  Buchanan,  5  Cal.  54. 

46  .Johnson  v.  Gorham,  6  Cal.  190;  2  Nev.  378;  Gregory  v.  Ford, 
34  Cal.  143;  73  Am.  Dec.  6.39. 

47  Postmaster-Gpneral  v.  Cochran,  2  .Tohns.  413;  Hughes  v.  Smith, 
5  ifl.  ^c<R. 

4s  Pfhnpifler  v.  Rears,  1.3  Oreg.  09. 

48  Sheehan  v.  Levy,  1  Wash.  St.  149. 


3^9  PLBLIC   OFFICEliS.  §§  5(32-5(34 

IV.  That  the  defendaut  alter  wards,  and  during  the  life 
thereof,  levied,  under  the  said  execution,  on  property  of  the  said 
W.  [of  the  value  of  ten  thousand  dollars;  or  sufficient  to  satisfy 
the  said  judgment,  with  all  the  expenses  of  the  execution;  or 
state  particulars  of  property  on  which  he  might  have  levied.] 

V.  That  the  defendant  afterwards,  in  violation  of  his  duty  as 
such  sheriff,  falsely  returned  upon  the  said  execution,  to  the 

clerk  of  the  county  of ,  that  the  said  W.  had  no 

property  in  his  county  on  which  he  could  levy  the  amount  of 
said  judgment  or  any  part  thereof. 

VI.  That  by  means  of  said  premises,  the  plaintiff  has  been 
deprived  of  the  means  of  obtaining  the  said  moneys  directed  to 
be  levied  as  aforesaid,  and  which  are  still  wholly  unpaid,  and 
is  likely  to  lose  the  same. 

[Demand  of  Judgment.] 

§    562.  The    same  —  allegation    for    not    levying    when    there 
was  an  opportunity,  and  falsely  returning  nulla  bona. 
Forvt  No.   117. 
[Allege  as  in  preceding  form  down  to  IV,  and  insert] : 
IV.  That  the  defendant  neglected  to  make  any  levy  on  the 
goods  and  chattels,  lands,  and  tenements  of  the  said  G.  W.; 
and  falsely  and  fraudulently  returned  upon  the  said  writ  to  the 
said  court,  that  the  said  G.  W.  had  not  any  goods  or  chattels, 
lands  or  tenements,  in  his  county.     That  by  reason  of  the 
premises,  the  plaintiff  is  deprived  of  his  remedy  for  obtaining 
payment  of  his  judgment  and  costs  aforesaid,  and  has  wholly 
lost  the  same. 

[Demand  of  Judgment.] 

\  863.  The  same  —  another  form  of  allegation. 

Form   No.    118. 
[Allege  as  in  preceding  form,  and  insert]: 
IV.  That  the  flefondant,  so  being  sheriff  as  aforesaid,  and 
having  the  said  orflor  in  bis  hands  to  execute,  and  knowing  that 
the  said  G.  W.  was  in  his  county  and  view  as  aforesaid,  falsely 
and  decfitfiilly  rfturned  on  the  same  order  io  said  court,  that 
the  said  G.  W.  could  not  be  found  in  his  county. 
[Demand  of  Judgment.] 

S  664.  Cause  of  action.  The  cause  of  action  for  a  false  re- 
turn arises  only  on  actual  return  of  the  writ;  but  it  relates 
back  to  the  return  dav,  and  the  false  return  is  properly  alleged 


^i<  :)G5-508  FORMS   OF   COMI'LAINTS.  400 

to  have  been  on  that  day."^"  An  oiliccr  who  should  refuse  to 
proceed  upon  a  second  execution  would  be  liable  for  a  false  re- 
turn.'*^ A  "fee  bill"  is  a  process  and  governed  by  the  same 
rule  as  executions.**^ 

§  565.  Measure  of  damages.  The  plaintill;  is  entitled,  prima 
facie,  to  the  face  of  the  execution.^^  And  in  case  of  loss  of 
property  by  negligence,  the  damages  are  the  value  of  the  prop- 
erty lost.'"'*  It  is  not  essential  to  aver  any  special  damage.  The 
amount  due  on  the  judgment  is,  prima  facie,  the  measure  of 
damages.''^ 

§  566.  That  return  was  false.  The  complaint  should  show 
that  the  return  was  false,  and  that  the  respect  in  which  it  was 
false  is  material;  deceit  or  fraud  need  not  be  alleged.^^ 

§  567.  Valid  judgment.  In  such  action,  plaintiff  must  prove 
a  valid  judgment.^'^ 

§  568.   For  seizing  a  vessel. 

Form  No.   iig. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  the  plaintiff  is,  and  at  the  time  hereinafter  mentioned 
was  the  owner  of  [naming  the  vessel],  her  tackle,  apparel,  and 
furniture,  and  that  he  had  chartered  the  same  to  one  A.  B.,  for 

a  voyage  from to   ,  and  back,  for 

dollars  per  week. 

50  INIiohaels  v.  Shaw,  12  Wend.  587. 

ci  Ross  V.  Weber,  2fi  111.  221:  Davidson  v.  Waldron,  31  id.  12(); 
83  Am.  Dec.  206;  Moore  v.  Fitz,  15  Ind.  43;  see  Howe  v.  White, 
49  Cal.  fi.58. 

52  De  Wolf  V.  Lonp,  2  Gilm.  f;78;  5  id.  96;  Newldrlc  v.  Chapman. 
17  111.  344;  24  Tex.  12. 

53  Ledyard  v.  Jones,  7  N.  Y.  550;  Rome  v.  Cnrtiss,  1  Hill,  275; 
Pardee  v.  Robertson,  6  id.  .5.50;   Kelloffs  v.   Manro,  9  .Johns.   300; 
Weld  V.  Bartlett,  19  Mass.  474. 

54  Morsran  v.   Meyers,   14  Ohio,  5.S8;   Smith  v.   Fuller,  id.   .545. 
55Lf>dyard  v.  .lones,  7  N.  Y.  5.50:  affirming  S.   O.,   4   Sandf.   07; 

Pardee  v.  Robertson.  6  ITill,  550;  Bank  of  Rome  v.  Ourtiss,  1  id. 
275:  nnfl  see  Piaron  v.  Cropsey,  7  N.  Y.  195. 

50  pppbles  V.  Newson,  74  N.  C.  473;  Baron  v.  Cropsey,  7  N.  Y.  195; 
Kidzie  v.  Sackrider,  14  Johns.  195;  Houghton  v.  Swarthout,  1  Den. 
589. 

B7  McDonald  v.  Bunn,  3  Dor.    45. 


401  "  PUBLIC    OFFICERS.  §  569 

II.  That  wlieu  said  vessel  was  at ,  on  her  voy- 
age aforesaid,  and  in  the  possession  of  0.  D.,  her  master,  ap- 
pointed b}'  the  plaintiff,  the  defendant,  on  or  about  the 

day  of ,  18.  .,  forcibly  seized  the  same,  with  her 

apparel,  furniture,  and  cargo,  of  the  value  of    

dollars  and  brought  the  same  to    

III.  That  in  consequence  thereof  the  plaintiff  has  lost  the 
said  vessel,  her  apparel,  equipments,  and  furniture,  and  the 
money  which  he  was  to  receive  for  the  charter  for  the  period 

of   weeks,  and  has  been  put  to  great  cost  and 

expense  in  and  about  asserting  and  maintaining  his  rights  to 
said  vessel,  her  tackle  and  furniture. 

[Demand  of  Judgment.] 

§  569.   For  an  escape. 

Form  No.   i20. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  tlie  time  of  issuing  the  execution  and  of  the  escape 
hereinafter  mentioned,  the  defendant  was  the  sheriff  of  the 
county  of ,  in  this  state. 

II.  That  on  the day  of ,  18.  .,  in  an 

action  in  the  [Superior  Court  of  the  county  of , 

in  this  state],  brought  by  this  plaintiff  against  one  A.  B.  for 
embezzlement  [or  other  cause  authorizing  arrest],  this  plain- 
tiff recovered  judgment,  duly  given  by  said  court  against  said 
A.  B.,  for dollars. 

III.  That  on  the   day  of  ,  18.  . ,  an 

execution  against  the  property  of  said  A.  B.  was  duly  issued 
by  the  clerk  of  said  court  on  said  judgment,  and  thereafter 
duly  returned  wbolly  unsatisfied. 

T^'.  Tbat  thereafter,  on  the day  of 

18.  .,  an  order  of  arrest  was  issnerl  l)y  the  judge  of  tbe  snid 
court  against  the  person  of  said  A.  1'..  and  tlien  directed  and 
delivered  to  the  defendant  as  said  sbcrifT,  whereby  he  was 
required  to  arrest  said   A.  1'.,  and  commit  him  to  the  jail   of 

said   conntv  of   imlil   be   sboidd   be   discharged 

according:  to  law. 

V.   Tbat  tberoaftor  the  defondnnt.   ns   siirb    sheriff,   nrresied. 
said  A.  r..  and  rnmmittff]  bim  In  j:iil.  luirsiinni  to  said  execu- 
tion, and  order  of  arrest. 
Vol.  T— 51 


g  oTO  roKMs  01-  co.Mi'LAiNTS.       '  40:^ 

VI.  That  thereupon  the  plaintill'  entered  into  an  under- 
taking, with  good  and  sidiicienl  jsoeiirities,  duly  executed  and 
approveil,  conditioned  lor  the  payment  oi'  tlie  expenses  of  said 
A.  1>.  lor  necessary  I'oikI,  clothing,  and  bedding  [or  state  a 
deposit  Tor  this  purpose]. 

VII.  That  in  violation  of  his  duly  as  such  sherilV,  he  has 
since,  to-wit,  on  the day  of ,  18.  .,  with- 
out the  consent  or  connivance  of  the  plaintiff  permitted  said 

A.  B.  to  escape,  to  the  damage  of  the  ])laintilf,   

dollars. 

Wherefore  the  plaintiff  demands  judgment  against  the  de- 
fendant, according  to  the  statute,  for  the  debt  [or  for  damage, 
or  sum  of  money]  for  which  such  prisoner  was  committed,  to- 
wit,  dollars,  with  interest  from,  etc.*^* 

§  570.  Arrest  for  contempt.  A  complaint  in  an  action 
against  a  sheriff,  for  the  escape  iTom  his  custody  of  a  person 
arrested  by  him  upon  a  process  for  contempt,  which  alleges 
that  the  sheriff  "  suffered  and  permitted  such  person  to  escape 
and  go  at  large,"  states  a  voluntary  and  not  a  negligent  escape; 
and  an  answer  which  avers  that  such  person  may  have  "  wrong- 
fully and  })rivily,  and  without  the  knowledge,  permission,  or 
consent  of  this  defendant,  escaped,"  etc.,  and  that  "  if  he  did 
so  escape,  he  afterwards  "  returned  into  custody,  etc.,  is  insuffi- 
cient as  a  pleading,  as  it  does  not  deny,  either  generally  or 

58  In  California  tlie  Tolitifal  Code  provides:  §  4182.  "A  sheriff 
who  siiffers  tlie  escape  of  a  person  in  a  civil  action,  without  the 
consent  or  connivance  f>f  the  ])erson  in  whose  behalf  the  arrest 
or  imprisonment  was  made,  is  liable  as  follows:  1.  When  the 
arrest  is  upon  an  order  to  hold  to  bail  or  upon  surrender  in  ex- 
oneration of  bail  before  judsment  he  is  liable  to  the  plaintiff  as 
bail.  2.  When  the  arrest  is  upon  an  execution  or  commitment  to 
enforce  the  payment  of  money,  he  is  lia1)le  in  the  amount  expressed 
In  the  execution  or  commitment.  3.  When  the  ari-est  is  on  an 
execution  or  commitment  other  than  to  enforce  the  payment  of 
money,  he  is  liable  for  the  actual  damages  sustained.  4.  Upon 
beinj;  sued  for  damages  for  an  escape  or  rescue,  he  may  introduce 
evidence  in  mitigation  and  exculpation."  §  4"IS,S.  "  Ho  is  liable  for 
a  rescue  of  a  person  arrested  in  a  civil  action,  equally  as  for  an 
escape."  §  4184.  "  An  action  can  not  be  maintained  against  the 
sheriff  for  a  rescue,  or  for  an  escape  of  the  person  arrested  upon 
an  execution  or  commitment,  if  after  his  rescue  or  escape  and 
before  the  commencement  of  the  action,  the  prisoner  returns  to 
jail,  or  is  retaken  by  the  sheriff." 


403  PUBLIC   OFFICEES.  §§  571-575 

specifically,  the  allegation  that  the  sheriff  permitted  the  pris- 
oner to  escape.^^ 

§  571.  Authority  to  release.  The  general  authority  of  the 
attorney,  as  such,  is  not  sufficient  to  authorize  the  sheriff  to 
discharge  the  prisoner  upon  his  consent.*^ 

§  572.  Committed.  That  he  had  arrested  the  debtor  and 
detained  him  in  custody  in  execution,  sufficiently  imports  com- 
mitment to  jail.^^ 

§  573.  Damages.  The  measure  of  damages  is  only  prima 
facie  the  amount  of  the  debt.^^  A  complaint  which  claimed 
the  amount  of  the  debt,  with  interest  and  costs,  without  using 
the  word  "  damages,"  is  equivalent  to  a  declaration  in  debt.^ 

§  574.  Escape,  definition  of.  In  New  York,  if  a  person  ad- 
mitted to  the  liberties  of  the  jail  limits  is  without  such  limits 
by  virtue  of  a  valid  legal  process  which  affords  Justification  to 
tbe  officer  taking  him  thence,  it  is  not  to  be  deemed  an  escape 
Avithin  the  meaning  of  2  E.  S.  437,  §  63,  although  that 
section  contains  no  express  exception  to  the  rule  that  being 
without  the  bouudaries  is  an  escape.  To  constitute  an  escape 
there  must  be  some  agency  of  the  prisoner  employed,  or  some 
wrongful  act  by  another  against  whom  the  law  gives  a  remedy.^* 
The  act  of  the  law,  as  well  as  the  act  of  God  or  of  the  public 
enomios.  will  ovciise  the  sheriff  in  au  action  for  escape. ^^ 

S  575.  Excuse.  Xothing  but  the  act  of  God  or  public  ene- 
mies will  excuse  the  sheriff  for  an  escape.^    In  California  the 

f^s  Loosey  v.  Orser,  4  Boew.  .?01 :  see  rospi-ovp  v.  Bowe,  10  Daly, 
35.3. 

«OKellop(,'  V.  r,ilV)orf.   10  .Tohns.  220;  0  Am.  Deo.  .^^".. 

"1  .Amos  V.  Wt'bliers,  8  Weml.  i")4."). 

«2ninorhlo  v.  Orser.  1  .\1)1>.  Pr.  4?,^:  Pottor  v.  T.nnsiiiir.  1  .Tolins. 
2ir»:  ?,  \m.  Deo.  ."^lO;  Ttussell  v.  Turner,  7  .Tnhns.  ISO;  .'')  Am.  Deo. 
2."»4;  Thomas  v.  Weed.  14  .Tolins.  2.">.5;  Llttlofield  v.  Brown.  1  Wonrl. 
?.W:  Patterson  v.  Westervclt.  17  Id.  .'•43;  Fairoliild  v.  Case.  24  Id. 
r^SI:  Amos  v.  Webbers.  S  Id.  rA'r.  Ilutohinsnn  v.  Brand.  0  N.  Y.  20.S. 

niRoniok   v.  Orser.  4  Bosw.  :\f>4:  MoProory  v.  Willet.  Id.  04.3. 

04  Alien  on  Rlioriffs,  2:^,1;  B.ixtor  v.  'I'nlxT.  )  Mass.  301;  rarsrlll 
V.  Taylor.  10  Id.  200. 

f.r.  Wilokons  v.  Wlllott.  1  Keyes.  .^21:  afflrminp:  S.  C.  sub  nnm. 
WloK-elliansen  v.  Will.-t.  12  Abb.  Pr.  .310;  21  TTow.  Pr.  40. 

n«  Fairoliild  r.  Cn9,(^.  24  "Wend.  ?.«! ;  Baincy  v.  Dunnintr.  2  Mnrph. 
Sfi. 


§§  576-578  i-oiiMS  of  complaints.  404 

sherilV  is  liable  for  a  rescue  eqiuilly  as  for  an  escape;  **''  but  au 
action  can  not  be  maintained  for  either  alter  the  prisoner 
returns  to  jail,  or  is  recaptured  by  the  sherilf."** 

§  576.  Form  of  allegation  in  debt.  Tliat  thereupon,  the 
judgment  remaining  wholly  unpaid,  the  defendant  became  in- 
debted to  the  plaintiff  in  the  sum  of dollars,  the 

amount  of  said  judgment .^'^  This  form  is  equivalent  to  a  decla- 
ration in  debt. 

§  577.  Indorsement.  The  indorsement  on  the  execution  or 
writ  need  not  be  set  outJ" 

§  578.  Liability  as  bail.  If,  after  being  arrested  upon  an 
order  to  hold  to  bail,  or  upon  a  surrender  in  exoneration  of  bail 
before  judgment,  the  defendant  escape  or  be  rescued,  the  sheriff 
shall  himself  be  liable  as  bail;  but  he  may  discharge  himself 
from  such  liability  by  the  giving  and  justification  of  bail  at  any 
time  before  judgment."^^  Whether  a  judgment  creditor,  in- 
jured by  the  escape  of  his  debtor  from  arrest,  elects  to  sue  the 
sheriff  at  common  law  for  escape,  or  under  section  201  of  the 
Code  of  Procedure  of  New  York,  as  bail,  is  manifested  by  the 
complaint.  If  he  proceeds  against  the  sheriff  as  bail,  he  must 
set  forth  the  proceedings  to  and  including  the  escape,  and  allege 
that  the  defendant  is  bail,  and  must  bear  the  appropriate  judg- 
ment. If  he  elects  to  prosecute  for  an  escape,  the  complaint 
will  contain  the  same  matters,  but  all  allegations  as  to  the 
character  of  the  defendant  as  bail  should  be  omitted,  as  wholly 
irrelevant  to  a  cause  of  action  for  an  escape.  A  complaint  in 
such  a  case,  which  makes  no  mention  of  the  defendant  as  bail, 
and  contains  nothing-  manifesting  an  intention  or  election  to 
holfl  him  liable  in  that  character,  is  to  be  treated  as  intending 
an  action  for  an  escape. '^^ 

"7  Polilif.il  Pode.   §  41S.^. 

«8  Id..  ?  41 S4.  A  rptum  of  the  prisoner  bpfore  the  commencement 
of  an  ar-tion  for  thp  escape  is  also  a  trood  defense  under  thp  Code  of 
Oiril  Procedure  of  New  York.  Didsbury  v.  Van  Tassell,  12  N.  Y. 
Siipp.  .?n. 

69  Barnes  v.  Willott,  11  Abb.  rr.  22.5;  S.  C,  19  How.  Pr.  ncA; 
so  in  rpnir-l<  v.  Orser,  4  Rosw.  384,  and  McCreery  v.  Willett,  id.  G43. 

70  .Tonos  V.  Cook,  1  Cow.  809. 

71  Politifal  rode.  §  41S2.  snbd.  1. 

72  Smith  V.  Knapp.  30  N.  Y.  ,581. 


405  PUBLIC   OFFICEES.  §§  579,  580 

§  579.  Negligence.  An  officer  wlio  negligently  permits  an 
escape  is  liable  to  the  person  injured  by  his  neglect  of  duty;  ''^ 
and  an  escape  from  a  deputy  may  be  declared  on  as  an  escape 
from  the  sheriff.'^"* 

§  580.  Voluntary.  A  complaint  which  alleges  that  "the 
sheriff  suffered  and  permitted  such  person  to  escape  and  go  at 
large,"  states  a  voluntary  and  not  a  negligent  escape."^^  Under 
the  averment  that  he  voluntarily  suffered  the  party  to  escape,  a 
negligent  escape  may  be  proved; '^^  and  evidence  of  a  negligent 
escape  supports  an  action  for  a  voluntary  one.'^'^ 

73Bro\\ii  V.  Genung,  1  Wend.  115;  37  111.  257. 

74  Skinner  v.  White,  9  N.  II.  204. 

75  Loosey  v.  Orser,  4  Bosw.  391 ;  see  Cosgrove  v.  Bowe,  10  Daly, 
353. 

76  2  T.  R.  126;  O'Neil  v.  Marson,  5  Burr.  2814;  1  Saund.  35. 

77  Skinner  v.  White,  9  N.  H.  204. 


CHAPTER  X. 

llECEiVEIlS. 

§  581.   By  a  receiver  appointed  pending  litigation. 
Form  No.   I2l, 

[State  and  County. J  [Couet.] 


A.  B.,  Keceiver  of  the  I'roperty  of 
C.  D.,  Plaiutiff, 

against 
E.  F.,  Defendant. 


. J 

The  plaintiff,  as  receiver  of  the  property  of  C.  D.,  complains, 
and  alleges: 

I.  [State  cause  of  action.] 

II.  That  on  the day  of ,  18.  .,  at  the 

city  and  county  of  San  Francisco,  and  state  of  California,  in 

an  action  then  pending  in  the  Superior  Court  of  the , 

county  of ,  state  of ,  wherein  C.  D. 

was  plaintiff  and  E.  F.  was  defendant,  upon  an  application  made 
by  the  said  A.  B.,  and  by  order  duly  made  by  said  court  [or 
judge],  this  plaintiff  was  appointed  receiver  of  the  property  of 
the  said  C.  D.,  hereinafter  described,  to-wit:  [Describe  property 
so  as  to  show  that  the  cause  of  action  is  embraced.] 

III.  That  thereafter,  and  before  the  commencement  of  the 
present  action,  he  gave  his  bond  required  by  the  said  order,  as 
such  receiver,  approved  by  the  said  Judge,  which  bond,  with 

such  approval,  is  on  file  in  the  said   court,  and 

v;ere  so  filed  prior  to  the  commencement  of  this  action. 

IV.  That  on  the day  of ,  18.  .,  said 

receiver  duly  obtained  leave  of  the  said  court  [the  court  appoint- 
ing him]  to  bring  this  action. 

[Demand  of  Judgment.] 

§  582.   Motion  for  appointment  of  receiver. 
Form  No.   isz. 
[Title.] 
Plaintiff  moves  that  a  receiver  l)o  appointed  in  this  action  on 
the  following  grounds  [stating  them]  : 

[Signature.] 


407  RECEIVERS.  §  583 

§  583.  Appointment  of  receiver.  Courts  of  equity  have  the 
power  to  apiDoint  receivers  and  to  order  them  to  take  possession 
of  the  property  in  controversy,  whether  in  the  immediate  pos- 
session of  the  defendant  or  his  agents;  and  in  proper  cases,  they 
can  also  order  the  defendant's  agents  or  employees,  although 
not  parties  to  the  record,  to  deliver  the  specific  property  to 
the  receiver.^  But  they  can  not  appoint  a  receiver  and  decree 
a  sale  of  the  property  and  affairs  of  a  corporation.^  Such  a 
decree  would  necessarily  result  in  a  dissolution  of  the  corpora- 
tion.^ Under  subdivision  5,  section  564,  California  Code  of 
Civil  Procedure,  a  receiver  may  he  appointed  when  a  corporation 
has  been  dissolved,  or  is  iu solvent,  or  in  imminent  danger  of  in- 
solvency, or  has  forfeited  its  corporate  rights.  Where  the  allega- 
tions of  a  bill  are  general,  and  the  equities  are  fully  denicl,  such 
a  case  is  not  presented  as  will  justify  the  appointment  of  a  re- 
ceiver, and  the  withdrawal  of  the  property  from  the  hands  of  one 
intimately  acquainted  with  all  of  the  affairs  of  the  concern,  and 
placing  it  in  the  hands  of  another  who  may  not  be  equally  com- 
petent to  manage  the  business.* 

In  California,  the  Code  ]irovides  that  a  receiver  may  be  ap- 
pointed by  the  court  in  which  the  action  is  pending,  or  by  a 
judge  thereof: 

"  1.  In  an  action  by  a  vendor  to  vacate  a  fraudident  purchase 
of  property,  or  by  a  creditor  to  subject  any  property  or  fund 
to  his  claim,  or  between  partners,  or  others  jointly  owning  or 
interested  in  any  fund,  on  the  application  of  the  plaintiff,  or  of 
any  party  whose  rights  to  or  interest  in  the  property  or  fund, 
or  proceeds  thereof,  is  probable,  and  where  it  is  shown  that  the 
property  or  fund  is  in  danger  of  being  lost,  removed,  or  materi- 
ally injured. 

"  2.  In  an  action  by  a  mortgagee  for  the  foreclosure  of  his 
mortgage,  and  the  sale  of  the  mortgaged  property,  where  it 
appears  that  the  mortgaged  |)r()])erty  is  in  flanger  of  being  lost, 
removed,  or  materially  injured,  or  that  the  conflition  of  the 
mortgage  has  not  been  ])erformed,  nnrl  that  the  property  is 
probably  insnffieient  to  dischnrge  llie   mortgage  debt. 

"3.   After  judgment,  to  carry  tbe  judgment  into  effect. 

"4.   After  judgment,  to  dispose  of  the  property  according  to 

1  Px  t^aric  rf.lien.  r.  C;il.  VM. 

2Noall  V.  nm,  in  r;ii.  us. 

BTcl. 

4WilliamRfin  v.  :\Ioiin.o.  ?,  Cal.  ?,^. 


§584  FOKMS    OV    t'OMl'LAINTS.  408 

tlio  judguioiit,  or  to  jtrrsorvo  it  during  the  pendency  of  an 
appeal,  or  in  ])roceedings  in  aid  oi'  execution,  when  an  execution 
has  been  relurned  uiisalisllcd,  or  when  the  judgment  debtor 
refuses  to  ai)pl_v  his  j)ropvrty  in  satisfaction  of  the  judgment. 

'•  5.  In  cases  wlu're  a  cor})oration  luis  heen  dissolved,  or  is 
insolvent,  or  in  imniiiu'nt  danger  of  insolvency,  or  has  forfeited 
its  corporate  rights. 

"  G.  In  all  other  cases  where  receivers  have  heretofore  been 
appointed  by  the  usages  of  courts  of  equity."''"' 

In  construing  this  provision  of  the  California  Code  it  has 
been  held  tliat  subdivision  G  thereof  is  but  declaratory  of  the 
equity  jurisdiction  conferred  on  the  courts  by  the  Constitution, 
and  includes  only  the  suits  in  which  it  has  been  the  usage  of 
courts  of  equity  to  appoint  a  receiver;  their  jurisdiction  in  this 
respect  would  have  l)een  the  same  in  the  absence  of  the  statute. 
It  does  not  include  the  power  to  appoint  a  receiver  in  an  action  of 
ejectment,  and  an  order  making  an  appointment  sliould  be 
annulled;^  nor  does  it  embrace  the  power  to  appoint  a  receiver 
of  the  property  of  a  corporation  in  aid  of  a  suit  prosecuted 
against  the  corporation  by  a  private  person;  such  power  must 
be  derived  from  express  statnte.  If  a  receiver  is  appointed  in 
such  a  suit,  the  a])pointment  will  be  annulled  on  certiorari.'^ 
The  appointment  of  a  receiver  may  be  made  upon  an  ex  parte 
application  at  chambers.^ 

§  584.  Alleging  appointment.  A  receiver  suing  by  virtue  of 
his  title  and  authority  should  state  the  time  and  place  of  his 
appointment,  and  distinctly  aver  that  he  has  been  appointed  by 
an  order  of  the  court.^  "\Aliere  a  receiver  would  make  title  to  a 
chose  in  action,  he  must  set  forth  the  facts  showing  his  appoint- 
ment. It  will  not  be  sufficient  to  aver  that  he  was  duly  ap- 
pointed.^^       So    describing    himself    as    "having    been    duly 

nr«l.  Code  Civ.  Tro.,  §§  r^CA-m^:  N.  Y.  Code  Civ.  Pro.,  §  l^?,\  Ohio 
Code,  §  .^)587. 

BBateman  v.  Siiperior  Court.  .^4  Cal.  2S.1;  Soott  v.  Sierra  TAimber 
Co..  07  id.  TO. 

7  La  Rofieto  Franr-aise,  etc.  t.  Fifteontli  Distrift  Court.  .^).3  Cal. 
40.5. 

"■Real  Estato  Assofiation  v.  Sni>erlor  Court,  m  Cal.  22?>. 

0  White  V.  Low.  7  Rarl).  204;  Cillett  v.  Fairohild,  4  Dpii.  SO;  Ranffs 
V.  Mr-Intosh.  2.",  P.arb.  r>m  :  ITol)ai-t  v.  Frost,  ^  Duer,  072:  Wliite  v. 
Low,  7  Barb.  200;  Dayton  v.  Connah.  18  TTow.  Pr.  .320. 

10  Cillett  V.  Fairohild.  4  Den.  80;  White  v.  .Toy,  13  N.  Y.  80;  Stuart 
V.  Beebe,  28  Barb.  ?>4:  Turlcorman  v.  Brown.  11  Abb.  Pr.  389. 


■iuy  EECEIVEKS.  §  585 

appointed  receiver  of,  etc.,  and  bringing  this  suit  by  order  of 
the  ISupreme  Court,"  is  insufficient  on  demurrer.^^  And  where 
a  plaintitt'  claims  title  to  a  note  sued  on  by  virtue  of  his  appoint- 
ment as  receiver  of  an  insurance  company,  the  note  being  payable 
to  a  company  bearing  a  name  different  from  that  of  the  com- 
pany of  vi^hich  he  is  receiver,  it  is  necessary  that  he  should^ 
by  proper  averments,  show  that  the  note  is  a  part  of  the  assets  of 
the  company  of  which  he  has  been  appointed  receiver. ^^  If 
the  change  of  name  was  by  reorganization  of  the  company  under 
the  general  act,  a  general  averment  of  the  fact  of  reorganiza- 
tion is  enough.  But  alleging  that  plaintiff  is  receiver  of,  etc., 
appointed  by  the  Supreme  Court  by  an  order  made  on  a  speci- 
fied day,  on  condition  of  filing  security,  and  that  such  security 
was  given  accordingly,  states  enough  to  enable  the  defendant  to 
take  issue  upon  the  legality  of  the  plaintiff's  appointment.^^ 

§  585.  Appointment  pending  litigation.  When  either  party 
establishes  a  prima  facie  right  to  the  property,  or  to  an  interest 
in  the  property,  the  subject  of  the  action,  and  which  is  in  pos- 
session of  an  adverse  party,  and  the  property  or  its  rents  and 
profits  are  in  danger  of  being  lost  or  materially  injured  or 
impaired,  the  court  or  a  judge  thereof  may  appoint  a  receiver.''* 
In  a  foreclosure  suit,  the  plaintiff  bas  no  right  to  have  a  receiver 
of  rents  and  profits  of  the  mortgaged  property  appointed  pcnd- 

n  See  authorities  cited  above,  note  1;  see,  also,  Dayton  v.  Connah, 
IS  How.  Pr.  326.  In  an  action  by  a  receiver  in  liis  official  rapacity, 
he  must  set  forth  in  liis  complaint  the  facts  of  his  appointmont  and 
(|uallficatlon  in  a  traversable  form,  but  it  is  lield  sufficient  if  these 
facts  be  stated  in  general  terms.  Wason  v.  Franli,  7  Col.  App.  541; 
Roclcwell  v.  Merwin,  4r>  X.  Y.  10(5. 

12  Hyatt  V.  McMalion.  2',  Hari).  457. 

13  Stewart  v.  Beel)0.  28  Barb.  34;  compare  Orowoll  v.  Church,  7 
Abb.  Pr.  20.'>,  note.  Of  tlio  proi)er  nuKle  of  complaininp;  in  an  action 
by  a  receiver,  of  departure  from  the  complaint  in  tlic  reply,  and 
of  the  proj>er  mode  of  seeklnff  relief  where  the  reply  departs  from 
tlie  complaint,  see  White  v.  Joy.  13  N.  Y.  8»3:  reversing-  S.  C,  11 
How.  Pr.  3G:  2  Abb.  Pi-.  .^)48.  As  to  flie  cases  in  whicli  a  receiver 
may  sue  In  his  own  name,  and  witliont  ;iveiTinK  Ids  ai)pointm(Mit. 
see  Wlilte  V.  .Toy.  13  N.  Y.  ."3;  P.aidc  of  Niagara  v.  .Tolmson,  S  Wend, 
c^.-.:  Ilaxtnn  v.  Tiisliop.  3  id.  13. 

!•»  Cal.  Code  Civ.  Pro.,  8  rtCA.  In  tlie  al)sonce  of  statutorv  antliority. 
a  receiver  can  not  l>e  appointed  during  tlie  pendency  of  an  action 
to  displace  the  management  of  tlir»  corporation  by  its  directors, 
and  no  such  antliority  exisfj  in  California.  Fisher  v.  Super'.or 
Court,  110  Cal.  129. 

52 


SK  :»SG-.")SS  Kl)l{.MS    OK    COMl'hAlKTS.  -iiO 

ing  a  litigation/'^  unless  it  appears  that  the  condition  of  the 
mortgage  has  not  been  perl'ornied,  and  that  the  property  is 
probably  insufficient  to  discharge  the  mortgage  deht.'"^ 

«!  586.  Appointment  after  judgment.  \n  an  action  to  recover 
possession  of  real  estate,  and  while  a  motion  for  a  new  trial  is 
pending,  a  receiver  of  the  rents  and  proceeds  of  the  property 
in  dispute  nuiy  be  appointed,  if  the  facts  of  the  case  are  such 
as  warrant  it.  If  the  defendant  in  possession  is  receiving 
monthly  large  sums  of  money  from  the  sale  of  the  waters  of 
mineral  springs  on  the  land,  and  is  insolvent,  a  receiver  may 
be  api)ointed,  pending  the  further  litigation,  on  motion  for  a 
new  trial  and  appeal.-^^ 

§  587.  Bound  by  order  of  court.  Receivers,  or  other  custo- 
dians of  money  in  the  hands  of  a  court,  as  they  are  bound  to 
obey  orders  of  the  court  in  their  relation  to  the  fund,  as  well 
as  regards  its  safe  custody  as  its  return,  are  correlatively  entitled 
to  the  protection  of  the  court  against  loss  for  disbursements 
which  were  necessary  and  proper  and  such  as  a  reasonable  and 
prudent  man,  acting  as  receiver,  would  have  been  justified  in 
expending.^* 

§  588.  Disbursements  of  receiver.  An  order  of  court  direct- 
ing a  referee  "  to  ascertain  and  rei)ort  the  amount  of  disburse- 
ments and  expenses  made  with  or  under  the  direction  and 
authority  of  the  court,"  by  a  receiver  or  custodian  of  money  in 
the  hands  of  the  court,  is  too  narrow  to  do  him  justice,  and 
should  be  so  enlarged  as  to  allow  for  all  reasonable  and  proper 
expenses  incident  to  the  receivership.^"  And  this,  although  the 
claim  is  for  disbursements  incurred  by  the  custodian  of  the 
fund  under  an  appointment  as  assignee  in  a  proceeding  in 
insolvency  which  was  afterwards  held  to  l)e  void.-*' 

i-'ifJuy  V.  Ide.  6  Cal.  101;  :Meyer  v.  Seebald,  11  Al)b.  (N.  S.)  326. 
noto. 

i**'  La  Sooiete  Franoaisp,  etc.  v.  Selheinier,  r»7  Cal.  <i23;  compare 
Tot)y  V.  Oregon  Pac.  It.  R.  Co.,  98  id.  490;  Staples  v.  May.  87  id. 
178. 

17  Whitney  v.  Buckman.  26  Cal.  4-17;  see  Cal.  Code  Civ.  Pro., 
§  .564. 

18  Adams  v.  Haskell.  6  Cal.  47.5;  Guardian  Savinjrs  Inst.  v.  Bowl- 
iHK  Gropn  S.  I.,  6.5  P.arb.  275. 

ifi  Adams  v.  Haskell.  6  Cal.  475. 

20  See,  also,  O'Malioney  v.  Belmont.  62  N.  Y.  133. 


411  KECEiVEiis.  '  §§  589-591 

§  589.  Discretion  of  court.  The  appointment  of  a  receiver 
rests  in  the  sound  discretion  of  the  court  upon  a  view  of  all 
the  facts;  one  of  which  is,  that  the  party  asking  the  appoint- 
ment should  make  out  a  prima  facie  case;  and  after  an  ex  parte 
appointment  has  been  made,  the  order  may  be  vacated,  either 
before  or  after  the  trial,  upon  a  proper  showing.^^ 

§  590.  Leave  to  sue  and  be  sued.  Unless  expressly  author- 
ized by  the  statute  under  which  the  appointment  is  made,  a 
receiver  can  not  sue  or  be  sued  without  leave  of  court.^^  And 
it  has  been  held  that  the  power  to  collect  is  not  sufficient  to 
authorize  him  to  sue.-^  Notice  of  the  application  to  the  court 
appointing,  for  leave  to  sue  the  receiver,  need  not  be  given  to 
him,  nor  to  the  parties  to  the  action  in  which  he  was  appointed."* 
Where  leave  to  sue  or  be  sued  is  required  to  be  obtained,  that 
the  same  was  obtained  should  be  alleged  in  the  complaint. 
Even  if  this  allegation  is  not  held  necessary  by  the  courts  in 
some  of  the  states,  the  safer  practice  is  to  make  it.^ 

§  591.  Powers,  duties  and  liabilities  of  receiver.  In  Califor- 
nia, the  Code  provides  that  the  receiver  has,  under  the  control 
of  the  court,  po^ver  to  bring  and  defend  actions  in  his  own 
name,  as  receiver;  to  take  and  keep  possession  of  the  property; 
to  receive  rents,  collect  debts;  to  compound  for  and  compromise- 
the  same;  to  make  transfers,  and  generally  to  do  such  acts  re- 
specting the  property  as  the  courts  may  authorize.^     The  Code 

21  Cooper  Hill  Min.  Co.  v.  Spencer.  2.")  Cal.  15:  and  see  Wilson  v. 
Denis,  1  Mont.  98;  Watlcins  v.  National  Banlc.  .^1  Kan.  2.54. 

22Kinff  V.  Cutts,  24  Wis.  027;  Battle  v.  Davis,  (i()  X.  C.  252; 
Scrovcn  v.  Clark.  48  Ca.  41;  Miami,  etc.  v.  Gano.  IS  Ohio.  269; 
Muri)li.v  V.  Iloll.rook,  20  Ohio  St.  I.ST;  5  Am.  Rep.  0.3.3;  rii^h  on  Rec. 
107;  DeC.root  v.  .Tay,  .30  Barb.  483:  Cal.  Code  Civ.  Tro..  §  4.5S;  see, 
also,  Davis  v.  Creameiy  Co..  128  Ind.  122;  Brown  v.  Ranch,  1  Wash, 
St.  497:  Martin  v.  Atchison.  2  Idaho.  .590. 

2.1  Screven  v.  Clark,  48  Ca.  41:  Kinp  v.  Cutts.  24  Wis.  027. 

24  Potter  v.  Bunncl,  20  Ohio  St.  1.50. 

2.^  Scofield  v.  Doschcr.  72  N.  V.  491:  Watts  v.  Everett.  47  Iowa, 
209:  SI.  Louis,  etc..  Railway  Co.  v.  iramilton.  158  111.  .300;  see  conira, 
a  dictum  in  Fincli  v.  Carpenter.  5  .\hl>.  I'r.  225;  compare  Cal  Code 
Civ.  Pro..  §  .5<W.  An  apiilicatioii  for  leave  to  sue  tlie  receiver  of 
an  insolvent  cr)rporation  is  addressed  to  the  sound  discretion  of 
the  coiu't.  and  an  order  denying  such  aiii)lication  will  he  uplield  un- 
less it  is  made  to  api)ear  that  the  discretion  thus  vested  in  tli(>  court 
has  been  abused.    Meeker  v.  Sprapue,  5  Wash.  St.  242. 

26  Cal.  Code  Civ.  Pro..  §  .508;  see,  also,  Dcnnery  v.  Superior  Court, 


§  bVi  FOK.MiJ    OF    CUM  PLAINTS.  413 

of  Ohio  contains  the  same  provision.-"  A  receiver  may  employ 
counsel.^  Tpon  the  a])])lication  of  the  receiver,  in  the  suit  for 
dissolution,  he  can  obtain  the  necessary  proceedings  for  pro- 
curing a  correct  applicatibu  of  the  balance  of  a  judgment  held 
by  the  partnership  against  a  third  party,  after  paying  the  judg- 
ment creditor  of  tlie  partnership.-'-^  A  receiver  can  pay  out 
nothing,  except  on  an  order  of  the  court;  but  there  are  excep- 
tions to  the  rule;  nor  will  he  be  denied  reimbursement  in  every 
case  in  which  he  neglects  to  obtain  the  order,  especially  in  a 
court  of  equity.^*'  It  will  not  be  presumed  that  the  receiver  has 
transcended  his  duties,  and  taken  possession,  of  property  to 
which  he  was  not  entitled;  nor  is  the  opposite  party  entitled  to 
have  issues  framed  and  submitted  to  a  referee  or  jury  to  ascer- 
tain the  ownership  of  the  money  in  the  receiver's  hands.^^  A 
receiver  is  personally  liable  to  persons  sustaining  loss  or  injury 
by  or  through  his  own  neglect  or  misconduct;  but  for  the  neglect 
or  misconduct  of  those  employed  by  him  in  performance  of  the 
duties  of  his  trust,  he  is  liable  only  in  his  official  capacity,  and 
the  judgment  against  him,  if  any,  must  be  made  -payable  out  of 
the  funds  in  his  own  hands  as  receiver.^^  In  this  case  it  was 
held,  that  where  a  railroad  was  operated  by  a  receiver,  a  party 
injured  may,  by  leave  of  the  court  appointing  the  receiver,  main- 
tain an  action  against  him  as  such,  for  injuries  sustained,  and 
that  it  is  no  defense  in  such  action  that  the  receiver  was  a 
public  officer,  or  that  he  was  an  agent  or  trustee. 

§  592.  Mining  claims.  The  purchaser  at  a  judicial  sale  of 
a  mining  claim  may,  where  the  judgment  debtor  remains  in 
possession,  working  the  claim,  and  is  insolvent,  have  a  receiver 
appointed  to  take  charge  of  the  proceeds  during  the  period 
allowed  by  the  statute  for  redemption.^^ 

84  Cal.  7;  Pacific  Railway  Go.  v.  Wade,  91  id.  449;  2.5  Am.  St.  Rep. 
201. 

27  Ohio  Code,  §  5590. 

28  Adams  v.  AVoods,  8  Cal.  315. 

29  Adams  v.  Hackett.  7  Cal.  187. 

30  Adams  v.  Woods.  15  Oal.  207;  Adams  v.  Haslvell,  T.  id.  475. 

31  Whitney  v.  Buckman,  20  Cal.  451. 

32  Camp  V.  Barney,  4  ITun,  373:  see,  also.  Miller  v.  Loeb,  64  Barb. 
454;  Potter  v.  Bunnell,  20  Ohio  St.  151;  Murphy  v.  Holbrook,  Id.  137; 
5  Am.  Rep.  042. 

33  Hill  V.  Taylor.  22  Cal.  191. 


■il3  RECEIVERS.  §§  593-597 

§  593.  On  application  for  injunction.  If  notice  is  given  of 
an  application  for  an  injunction,  and  tlie  petition  prays  for  an 
injunction,  the  judge,  on  the  hearing,  may  appoint  a  receiver,  if 
the  facts  make  out  a  proper  case  for  a  receiver,  and  no  objection 
is  made  on  the  ground  of  want  of  notice  of  the  application.-'* 

§  594.  Setting  aside  assignment.  Where  a  receiver  brings  an 
action  to  set  acside  an  assignment,  he  must  state  in  his  complaijit 
the  equity  of  the  party  whose  rights  he  represents,  to  maintain 
the  action  which  he  attempts  to  prosecute.  A  receiver  in  general 
is  not  clothed  with  any  right  to  maintain  an  action  which  the 
parties  or  the  estate  which  he  represents  could  not  maintain.^ 
And  he  must  show  a  cause  of  action  existing  in  those  parties.*** 

§  595.  Suit  against.  A  suit  can  not  be  brought  against  a 
receiver  when  the  judgment  would  disturb  the  receiver's  pos- 
session of  the  property;  nor  can  a  creditor  bring  an  action  against 
him  to  litigate  his  claim.  All  such  questions  may  be  determined 
by  the  court  by  an  intervention  in  the  pending  litigation. ^^ 

§  596.  Transfer  to  receiver.  In  California  the  transfer  to  a 
receiver  by  order  of  court  of  the  effects  of  an  insolvent  in  the 
suit  of  a  judgment  creditor,  is  not  an  assignment  absolutely 
void  under  the  Insolvent  Act  of  1852,  according  to  any  decision 
of  the  Supreme  Court,  but  only  void  against  the  claim  of  cred- 
itors.^* W^here  it  appears  that  the  partners,  parties  to  the  suit 
for  a  dissolution,  held  a  judgment  against  a  third  party  which 
was  never  reduced  to  the  possession  nor  under  the  control  of 
the  receiver,  the  appointment  of  the  receiver  would  not  operate 
as  an  assignment  or  transfer  of  any  property  not  so  reduced  to 
possession  within  a  reasonable  time.^® 

§  597.  Vacating  order  of  appointment.  The  pendency  of  a 
motion  for  a  nvw  trial  docs  not  operate  as  a  stay  of  proceedings, 
80  as  to  deprive  the  court  of  the  power  of  vacating  an  order 
appointing  a  receiver  made  before  the  trial.*"     The  court  which 

•■'■*  Whltnpy  V.  Bur-knian,  20  Cal.  447;  compare  Wallcor  v.  Stone, 
70  Towa.  in.'',:  Stofkton  v.  T^ailrorid  Co..  .W  X.  .T.  Eq.  4S<). 

3f.  Coope  V.  Bowles,  42  Barb.  R7;  R.  C,  18  Altl>.  Pr.  442;  and  28 
How.  Pr.  10. 

8fl  Id. 

37R]iinnintr  v.  OIilo  T-ifc  Ins.  vV:  Tni.st  Co.,  2  DIs.  336. 

3s  Xa-Ioe  v.  T.yman,  14  CtI.  4.^iO. 

39Adnni3  v.  Haskell.  0  Cril.  II.T;  Cr,  Am.  Voc.  491. 

40  Coppor  Hill  Min.  Co.  v.  Sponcor.  25  Cal.  l."^);  Wilson  v.  Barney, 
6  Hun.  2.57. 


§^  5il8,  5510  FOUMS    OF    COMPLAINTS.  414 

lirsl  acquires  jurisdiction  and  ap})oiiits  a  receiver  of  a  lund,  has 
the  whole  jurisdicliou  tliereol,  and  is  bound  to  administer  it.*^ 

g  698.   The  same  —  appointed  in  supplementary  proceedings. 
Form  No.   J^j. 
[TiTLE.J 

The  plaintitf,  as  receiver  of  the  property  of  C.  D.,  complains, 
and  alleges: 

I.  [State  cause  of  action.] 

II.  That  on  the   day  of    ,   18.  .,  at 

,  upon  an  application  made  by  L.  M.,  a  judgment 

creditor  of  said  C.  D.,  in  proceedings  supplementary  to  execu- 
tion, and  by  an  order  or  determination  then  duly  made  by  the 
Hon.  G.  H.,  judge  of  the  Superior  Court  for  the  county  of 
,  state  of  ,  the  plaintiff  was  ap- 
pointed receiver  of  the  property  of  said  C.  D. 

III.  That  thereafter,  and  before  the  commencement  of  this 
action,  he  gave  his  bond,  required  by  said  order,  etc.  [as  in 
preceding  form]. 

IV.  [Allege  permission  to  sue,  as  in  preceding  form.] 

[Demand  of  Judgment.] 

§  599.  Fund  in  hands  of  trustees.  Where  a  complaint  by  a 
receiver,  appointed  in  supplementary  proceedings,  alleged  that 
a  fund  was  given  by  will  to  the  defendants  as  trustees,  in  trust, 
to  keep  the  same  invested  and  pay  the  interest  to  the  execution 
debtor  during  his  life;  that  the  defendants  had  collected  interest 
since  the  appointment  of  the  plaintiff  as  receiver,  but  refused 
to  pay  the  same  over  to  the  plaintiff,  but  did  not  aver  that  any 
part  of  the  interest  was  in  the  hands  of  the  defendants,  as  a 
surplus  above  what  was  necessary  for  the  debtor's  support;  it 
was  held  that  the  complaint  did  not  state  facts  sufficient  to 
constitute  a  cause  of  action.^^  The  interest  of  the  debtor  in 
the  income  of  the  fund  under  such  a  trust  is  only  subject  to 
the  claims  of  creditors  to  the  extent  of  a  surplus  over  and  above 
what  is  necessary  or  proper  for  his  maintenance  and  support. 
The  court  can  not  infer  that  such  a  surplus  exists.  It  is  the 
duty  of  the  pleader  to  show  by  proper  averments  that  such  facts 
exist. ^ 

41  O'^rahoney  v.  Belmont.  f)2  N.  Y.  1.33. 

42  Graff  V.  Bennett,  31  N.  Y.  9;  88  Am.  Dec.  236. 
4flld. 


415  RECEIVERS.  §§  600,  601 

§  600.  Supplementary  proceedings.  In  proceedings  supple- 
mentary to  execution  tlie  court  may  appoint  a  receiver  when 
it  has  all  the  parties  before  it.^* 

J   601.   Another  form  —  setting  out  proceedings   at  length. 
form  No.   124, 

[Title.] 
The  plaintiff,  as  receiver  of  the  property  of  C.  D.,  complains, 
and  alleges: 

I.  That  E.  F.  and  G.  H.,  of  San  Francisco,  state  of  California, 
survivors  of  C.  D.,  deceased,  in  an  action  brought  by  them  in  tho 

Superior  Court  of  the  county  of ,  state  01  California, 

against  J.  K.,  obtained  judgment  against  the  defendant  in  that 
action,  on,  etc.,  for  the  sum  of,  etc.,  which  Judgment  was  en- 
tered by  the  clerk  of  the  county  of ,  on  the  day  afore- 
said, and  the  roll  filed  and  Judgment  docketed  in  said  clerk's 
office  on  that  day. 

II.  That  on,  etc.,  an  execution  therefor  was  duly  issued  and 
delivered  to  the  sheriff  of  said  county  of ,  command- 
ing him  to  make  said,  etc.,  with  interest  from,  etc.,  and  make 
return  of  his  doings  in  the  premises;  that  said  sheriff  afterwards, 
and  on,  etc.,  returned  said  execution  to  the  office  of  the  clerk  of 
the  county  of ,  with  his  return  thereon  indorsed,  show- 
ing the  execution  wholly  unsatisfied. 

III.  That  afterwards,  and  on,  etc.,  the  plaintiff  in  said  action 
caused  an  affidavit  to  be  made,  setting  forth  the  above  facts,  as 
to  obtaining  said  Judgment,  the  filing  of  transcript,  the  issuing 
and  return  of  said  execution,  and  that  the  said  judgment  re- 
mained wholly  unsatisfied,  and  presented  the  same  to  Hon. 

J.  D.,  Judge  of  the  Superior  Court  of  the  county  of ,  on 

the  same  day,  who  thereupon,  and  on,  etc.,  made  an  order  re- 
quiring said  Judgment  debtor  to  appear  before  L.  M.,  Esq., 
referee  thereby  appointed,  at  the  office  of  said  L.  M.,  in,  etc.. 
on,  etc.,  at  ....  o'clock  in  the  ....  noon,  to  testify  conocrnira- 
his  property;  and  r^airl  X.  O.  1)y  said  order  was  further  forl)ifldo!i 
to  transfer,  or  in  any  niMnnor  dispose  of.  or  interfere  wilh  any 
propertv,  moneys,  or  things  in  action  belonging  to  liini  until 
further  order  in  the  premises. 

TV.  That  said  order  was  personally  served  on  said  defendant 
on    the   ^;anie   day.   and    said    defcndnnl    appeared    liefore    said 

<4  ITathaway  v.  Brndd,  2n  Pal.  .'Sd;  see  ^reDowell  v.  I'.i'll,  SO  irl. 
G15. 


g  (j[)2  I'OliMS    OF   COMPLAINTS.  416 

loi'oive  at  iho  timo  and  place  in  said  order  S23ecified,  and  sever- 
ally submittotl  to  an  examination  under  oath^  and  testilied  as  to 
his  j)roperty,  which  examination  was  on  the  same  day,  by  said 
rol'eree,  cei'tilied  to  said  judge,  who,  thereupon,  by  an  order, 
apj)t>inted  A.  B.,  oi",  etc.,  this  plaintill',  receiver  of  all  the  debts, 
j)roperty,  etl'ects,  equitable  interests,  and  things  in  action  oi 
said  C  D.,  and  further  ordered  this  plaintilf,  before  entering 
upon  the  execution  of  his  trust,  to  execute  to  the  clerk"*^  of  this 
court  a  bond,  with  sufficient  sureties,  to  be  by  said  judge  ap- 
proved, in  the  penal  sum  of dollars,  conditioned  for  the 

faithful  performance  and  discharge  of  the  duties  of  such  trust, 
and  that  this  plaintiff,  upon  filing  such  bond  in  the  office  of  the 

clerk  of  the  county  of ,  be  invested  with  all  rights  aud 

powers  as  receiver  according  to  law.  The  said  C.  D.  was  therein 
and  thereby  enjoined  and  restrained  from  making  any  disposi- 
tion of  or  interfering  with  his  property,  equitable  interests, 
things  in  action,  or  any  of  them,  except  in  obedience  to  said 
order,  until  further  order  in  the  premises. 

V.  That  on,  etc.,  he  executed  a  bond  with  sureties,  as  re- 
quired by  said  order,  and  the  rules  and  practice  of  this  court, 
which  was  approved  by  said  judge,  and  filed  in  the  office  of  the 
clerk  of  the  county  of,  etc. 

VI.  [Allege  cause  of  action.]^® 

[Demand  of  Judgment.] 

§  602.   By  receiver  of  dissolved  corporation. 
Form  No.   125, 

[Title.] 

The  plaintiff,  as  receiver  of  the company,  complains, 

and  alleges: 

I.  [State  a  cause  of  action  accruing  to  the  corporation.] 

II.  That  on  the day  of ,  18.  .  .,  at , 

upon  an  application  made  upon  occasion  of  the  insolvency  of 

the  said   company  [or  state  any  other  reason  which 

may  exist],  and  by  an  order  of  the  Hon judge  of  the 

Superior  Court  of  the  county  of ,  state  of  ralifornia, 

4R  Tender  seotion  .507,  California  Code  of  Civil  Procedure,  tho  un- 
dprtakincT  must  l>e  made  to  such  person  and  in  stich  sum  as  the 
rourt  or  judjrp  may  direct.  The  allegation  of  the  making  and  filing 
of  the  bond  should  follow  the  order  of  the  court  or  .iudge  directing 
the  bond  to  be  {riven. 

46  The  above  form  is  substantially  from  AfcCall's  Forms,  270.  See 
Cal.  Code.  §  .'i04,  subd.  3;  N.  Y.  Code,  §  244,  subd.  5. 


417  EECEiVEKs.  §§  603,  604 

the  plaintiff  was  appointed  receiver  of  the  property,  and  effects, 

and  things  in  action  of  the  said company,  pursuant  to 

statute. 

III.  [Allege  qualification  and  permission  to  sue  as  in  form 
Xo.  121.] 

[Demand  op  JuDGiiEXT.] 

§  603.  Occasion  of  dissolution.  The  occasion  of  the  dissolu- 
tion should  be  shown."*" 

§  604.  By  receiver  of  Mutual  Insurance  Company  on  premium, 
note. 

Form  No.   126, 

[Title.] 

The  plaintiff,  as  receiver  of  the company, 

complains,  and  alleges: 

I.  That  the  Insurance  Company  was  at  the  time 

hereinafter  mentioned  a  mutual  insurance  company,  duly  in- 
corporated as  such  under  and  by  virtue  of  an  act  of  the  legisla- 
ture of  this  state,  entitled  [title  of  act],  and  was  duly  organized 
under  said  act,  to  make,  etc.      [State  object  of  incorporation.] 

II.  That  on  the day  of ,  18.  .,  at  the  Gen- 
eral Term  of  the  Superior  Court,  in  and  for  the  county  of , 

state  of  California,  this  plaintiff  was  appointed  receiver  of  the 
stock,  property,  things  in  action,  and  effects  of  the  said  company 
[upon  the  occasion  of  its  voluntary  dissolution,  or  otherwise.] 

III.  That  thereafter,  and  prior  to  the day  of , 

18. . .,  the  plaintiff  gave  the  requisite  security  as  said  receiver, 
and  filed  the  same  in  the  clerk's  office  of  the  said  county  of 

,  and  thereupon  entered  upon  the  duties  of  his  office 

as  such  receiver,  and  is  now,  as  said  receiver,  in  possession  of 
the  stock,  property,  things  in  action,  and  effects  of  the  said 
corporation. 

IV.  T]^at  tlie  defendant  made  his  certain  note  in  writing, 
commonly  callod  a  premium  note;  and,  at  the  date  in  said  note 
mentioned,  delivered  the  said  note,  of  which  the  following  is  a 
copy,  to  the  said company.     [Copy  not?.] 

V.  That  said  policy  of  insurance  expired  in  one  year  from 
the  datf  tlieroof.  and  paid  note  formed  part  of  the  capital  stock 

47r;illct  V.  Fairchild.  4  Den.  SO;  see  Tufkennan  v.  Brown.  11  Abb. 
Pr.  .380.     Power  of  flip  oonrt  to  appoint  a  receiver  upon   the  dis- 
solution  of  a  corporation.    See  People  v.   Superior  Court,   100  Cal. 
119;  Insurance  Co.  v.  San  Franeisco,  101  Id.  135. 
YoT,.  T— .'')3 


§  GUi  |-OI{.\IS    01'    C'O.Ml'LAI^TS.  418 

of  said  company,  and  which  said  policy  oi'  insurance  was  issued 
and  ilolivcrcil  to  llio  said  defendant  at  the  (Kite  mentioned  in 
the  said  note,  and  llicrchy  ilie  said  (Ud\'n(hint  became  a  nannber 
of  said  com])any,  (biwn  to  and  inclutling  the  time  I'or  whicli 
said  note  was  assessctl  by  said  jihuntitf  as  said  receiver,  to  pay 
the  losses  ajul  liabilities  of  said  company,  incurred  wliilsi  said 
policy  and  note  were  in  full  force  and  effect. 

VI.  That  after  be  liatl  entered  on  the  duties  as  said  receiver, 
he  ascertained  the  amount  of  the  losses  by  risks,  and   otlier 

liabilities  of  said  company;  and  as  said  receiver,  at 

aforesaid,  on  the day  of ,  18.  , .,  did  settle  and 

determine  the  sums  to  be  paid  by  the  several  members  of  said 
company,  as  tbeir  respective  portions  of  such  losses  and  lia- 
bilities, in  proportion  to  the  unpaid  amount  of  his  or  their 
deposit  note  or  notes,  agreeably  to  the  charter  and  by-laws  of 
said  company,  and  did  thereafter  on  said  note  assess  the  sum  so 
settled  and  determined  upon  to  be  paid  by  the  several  members 
of  said  company,  liable  to  be  assessed  therefor. 

VII.  That  after  the  making  of  the  said  assessment,  as  said 
receiver,  he  published  notice  thereof  in  the ,  a  news- 
paper published  in  the  county  of ,  once  in  each  week 

for days,  commencing  on  the day  of 

18...,  and  that  previous  to  the day  of ,  18 .  . . , 

he  caused  notice  to  be  served  on  each  person  assessed,  of  the 
amount  so  settled,  determined,  and  assessed  to  be  paid  by  him 
on  his  premium  note,  by  depositing  such  notice  in  the  post- 
office  at ,  directed  to  each  person  assessed  at  his  place 

of  residence,  as  far  as  such  place  of  residence  could  l)e  ascertained 
from  the  books  of  said  company,  requiring  said  assessment  to 
be  paid  in days  after  service  of  such  notice. 

VIII.  That  at  a  term  of  the  Superior  Court  of  the.  county  of 

held  at  the  courthouse,  in  the  city  and  county  of 

San  Francisco,  on  the day  of ,  18.  . .,  the 

aforesaid  assesvsment,  so  made  by  said  receiver  on  the  premium 
notes  of  the  members  of  said  company,  was  ratified  and  con- 
firmed, and  the  said  receiver  authorized  and  directed  by  said 
court  to  bring  suits  against  the  several  members  of  said  com- 
pany, who  have  refused  or  neglected  to  make  payment  of  the 
amount  so  assessed  by  plaintiff  to  be  paid  on  their  respective 
premium  notes. 

IX.  That  the  said  defendant's  note  aforesaid  was  assessed, 
for  the  purpose  aforesaid,  to  the  amount  of dollars. 


419  RECEIVERS.  §  60ia 

and  said  assessment  was  made  for  losses  or  damages  by  risks  on 
life  [or  otherwise]  and  expenses  accrued  to  said  company  only 
while  said  note  and  policy  of  insurance  therein  mentioned  were 
in  full  force  and  effect. 

X.  That  the  defendant  has  not  paid  the  said  assessment,  or 
any  part  thereof. 

[Demand  of  Judgment.]*^ 

§  604a.  Receivers  —  questions  of  pleading.  In  an  action  by  the 
receiver  of  an  insolvent  bank  against  its  officers,  to  recover  dam- 
ages for  losses  occasioned  by  alleged  illegal  loans,  a  mere  alle- 
gation that  they  made  illegal  loans  will  not  show  a  cause  of 
action  against  the  officers,  but  it  is  essential  to  allege  the  non- 
payment of  the  loans  in  question,  from  which  the  damage  to 
the  plaintiff  may  l)e  inferred.'*^ 

A  complaint  in  an  action  by  a  Judgment  creditor  asking  for 
the  appointment  of  a  receiver  for  an  insolvent  corporation,  is 
not  open  to  the  objection  that  it  fails  to  allege  that  the  judg- 
ment debtor  has  no  other  property  out  of  which  tlie  plaintiff 
could  satisfy  his  judgment,  when  it  states  that  the  defendant 
is  in  failing  circumstances,  and  that  it  has  more  judgments 
already  rendered  against  it  than  it  can  pay.^*^  Where  a  com- 
plaint alleges  that  the  business  of  a  railroad  company  was  con- 
trolled and  managed  by  a  receiver  at  the  time  a  contract  was 
entered  into  with  the  plaintiff,  a  contention  on  demurrer  to 
the  complaint  that  the  receiver  had  no  power  to  make  the  con- 
tract is  without  merit,  the  want  of  authority  not  appearing.  It 
can  not  be  assumed  that  the  contract  was  made  in  violation 
of  his  authority,  until  his  authority  in  the  premises  is  shown.'^ 

48  Such  a  complaint  must  slmw  tlio  liabilities  of  the  company. 
Thomas  v.  Whallon,  31  Barb.  172. 

49  Knapp  V.  Ttoohe,  04  X.  Y.  r.20. 

f'O  Whitfhonse  v.  Point  Defiance,  etc..  Railway  Co..  0  Wash.  St. 
n.'R.  Allepations  of  a  bill  in  fhnnfpiy  sufTicient  to  anthorizo  the  ap- 
pointment of  a  r(H'elver  of  a  fhuroh  ooi-poration.  See  Ignited  States 
V.  rhnrrh,  etc..  r*  Utah.  r.Ol. 

ci  Bayles  v.  Kansas  Tac.  Hallway  Co.,  13  Col.  ISl. 


SUBDIYISIOIS"  SEOOED. 

IN  ACTlOls'S  FOR  DJb^BT. 


CHAPTEE  I. 

ACCOUNTS. 


§  605.   For  money  due  on  an  account. 

Form  No.   127, 
[TITLE.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

I.  That  between  the day  of and  the 

day  of ,  18.  .,  at ,  the  plaintiff  sold  and  de- 
livered to  the  defendant,  at  his  request,  certain  goods,  wares, 
and  merchandise. 

II.  That  the  same  were  reasonably  worth  the  sum  of 

dollars. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof, 

[Demand  of  Judgment.] 

f  606.  The  same  —  another  form  —  common  count. 

Form  No.   128. 
The  plaintiff  complains  of  the  defendant,  and  alleges: 
I.  That  the  defendant  is  indebted  to  tlie  plaintiff  in  the  sum 
of dollars,  upon  an  account  of  goods  sold  and  deliv- 
ered by  the  plaintiff  to  the  defendant,  at  his  request,  at , 

between  the day  of ,  and  the day  of 

,18.. 

IT.  That  the  same  became  due  and  payable  on  the day 

of J  18.  .,  but  the  defendant  has  not  paid  the  same,  nor 

any  part  thereof  [if  there  have  been  payments,  add  "  except  the 
sum  of dollars"]. 

[Demand  of  Judgment.] 


421  ACCOUNTS.  §§  607,  608 

§  607.  Essential  averments.  At  the  common  law,  an  allega- 
tion in  an  action  on  an  account,  that  the  defendant  is  indebted 
to  plaintilf  in  the  sum,  etc.,  for  goods  sold  and  delivered  on, 
etc.,  and  that  there  was  then  due  to  the  plaintift:  from  the  defend- 
ant said  sum,  implies  a  contract,  a  promise  to  pay,  and  that 
the  period  when  the  same  was  promised  to  he  paid  had  expired, 
and  constitutes  a  good  indebitatus  count  in  debt.^  An  aver- 
ment of  request  is  not  necessary.-  The  allegation  of  value  is 
material.^  But  an  implied  promise  to  pay  is  matter  of  law, 
and  should  not  be  pleaded.'*  Where  a  demand  would  be  neces- 
sary if  the  plaintiff  sued  for  damages  for  conversion,  he  must 
aver  a  demand  where  he  sues  upon  the  implied  contract,  waiv- 
ing the  tort.°  A  contract  to  pay  generally,  and  without  time 
or  terms  specified,  creates  a  debt  pa3'able  presently,  and  no 
previous  call  or  demand  of  payment  is  required,  and  none  need 
be  averred.  Bringing  the  action  is  a  sufficient  demand.®  On 
an  agreement  to  pay  on  request,  though  no  request  is  necessary 
if  the  promisor  be  the  principal  debtor,  it  is  necessary  if  he  is 
a  surety.'^ 

§  608.  Items  of  account.  In  California  and  many  of  the 
other  Code  states,  the  Code  contains  the  following  provision: 
"  It  is  not  necessary  for  a  party  to  set  forth  in  a  pleading  the 
items  of  an  account  therein  alleged,  but  he  must  deliver  to  the 
adverse  party,  within  five  days  after  demand  thereof,  in  writing, 
a  copy  of  the  account,  or  be  preeluded  from  giving  evidence 
thereof.  The  court,  or  a  judge  thereof,  or  a  county  judge,  may 
order  a  further  account  where  the  one  delivered  is  too  general, 
or  is  defective  in  any  particular."*     If  the  account  as  delivered 

1  1  Chit.  ri.  345;  2  id.  142;  Emery  v.  Fell,  2  T.  R.  28;  Allen  v, 
Patterson,  7  N.  Y.  470;  see,  also,  Hughes  v.  Woosley,  15  Mo.  492, 
as  to  form  of  complaint  on  an  account. 

2  Acome  v.  Anicrican  Mineral  Co.,  11  How.  Pi-.  24. 
aOrcRorj-  v.  Wrifrht,  11  Abb.  Pr.  417. 

4  Farron  v.  Slicrwood,  17  X.  Y.  227. 

6SiKK)r  V.   Newell,  .S  Hill,  .3C>7. 

«  Lake  Ontario,  etc.,  R.  R.  Co.  v.  Mason.  16  N.  Y.  451. 

7  Nelson  v.  Bostwick,  r>  Hill,  .37;  40  Am.  Doc.  310. 

8Cal.  Co<le  Civ.  Pro.,  8  4TA\  Conner  v.  Hutchinson,  17  Cal.  281;  P. 
Tool  Co.  V.  r»rader,  .32  Id.  (n3S:  Rogers  v.  Duff,  97  id.  (W;  Famvoll  v. 
Murray,  104  id.  404;  Wise  v.  Hofrjin,  77  id.  1S4;  Goodrich  v.  .Tamos,  1 
Wend.  2K9;  N.  Y.  Code,  g  .".'il ;  Wis.  R.  S.,  chap.  12."'.,  8  20;  Minn. 
Code  Pro..  §  92;  Col.  Code  Civ.  I'ro.,  g  04;  Nev.  Comp.  L.,  §  1119; 
N.  C.  Code  Civ.  Pro..  §  IIH;  S.  C.  Code  Pro.,  §  181;  Florida  Code 
Olv.  Pro.,  §  108.     In  other  states  the  copy  of  the  account  must  be 


§  GOO  I'OKM.S    Ol'    ('OMTLAllSTS.  4:22 

is  not  satisl'actory,  ami  the  diIkt  parly  intends  to  object  to  the 
introduction  ot  evidence  on  the  sulgeet,  an  oidvr  tor  its  exehi- 
sion  should  be  obtained  previous  to  tlie  trial."'  A  count  for  the 
value  ot  the  use  and  i)eeupation  of  plaintiiV's  land  does  not  pre- 
A^ent  a  elaini  upon  w  liieh  a  bill  of  particulars  ean  be  required.^'' 

In  an  action  to  recover  numy  items  ot  demand  claimed  by 
one  and  the  same  right,  the  items  may  be,  for  the  sake  of  brev- 
ity and  convenience,  thrown  into  one  count. ^^  If  the  action  l)e 
in  fact  for  an  accounting,  it  may  be  treated  as  one  cause  of 
action  of  an  equitable  nature,  and  stated  accordingly.^^ 

§  609.  Mutual,  open,  and  current  account  —  set-ofE.  A  ''  mu- 
tual, oi)en,  and  current  account,  where  there  liave  been  recipro- 
cal demands,"  within  the  meaning  of  the  Statute  of  Limitations, 
is  one  consisting  of  demands  upon  which  each  party  respectively 
might  maintain  an  action. ^^  If  all  the  items  on  one  side  of 
the  account  were  intended  by  the  parties  as  payment  or  credits 
on  account,  it  is  not  a  mutual,  open,  and  current  account  where 
there  are  reciprocal  demands. ^^  So  where  one  party  is  selling 
to  the  other  party  goods  from  time  to  time,  and  charging  the 
same,  and  the  other  gives  him  the  money,  which  he  credits  on 
the  account  as  payment,  the  credit  does  not  make  the  account 
mutual  within  the  Statute  of  Limitations,  and  each  item  is 
barred  in  two  years  after  its  delivery.'-''  But  where  the  defend- 
ants delivered  to  the  plaintiffs  an  article  of  personal  property, 
for  which  the  latter  gave  the  former  credit  at  a  specified  valua- 
tion, a  mutual  account  was  created.'*'  In  Nevada,  it  Avas  de- 
cided that  such  a  credit  would  not  constitute  a  mutual  account 
consisting  of  reciprocal  demands,  hut  it  would  create  a  mutual 
account  if  delivered  without  any  understanding  that  it  should 

either  attached  to  or  incorporated  in  the  pleading?.  The  complaint 
in  an  action  in  a  Justice's  Com-t.  purporting  to  be  a  copy  of  an 
account  for  money  lK)rrowed  on  a  certain  day,  is  sufficient  in  the 
absence  of  a  demun-er.  Montjjomery  v.  Superior  Court,  68  Cal.  407. 
»  Kellogg  V.  Paine,  8  How.  Pr.  329. 

10  Moore  v.  Bates,  46  Cal.  30. 

11  I-ongworthy  v.  Knapp.  4  Abb.  Pr.  115. 

12  Adams  v.  Holley,  12  How.  Pi'.  326;  see  Blanehard  v.  Jefferson, 
28  Abb.  N.  C.  2.^6. 

13  Warren  v.  SAvccnoy.  4  Xev.  101. 

14  Id.:  Purvis  v.  Kroner.  IS  Greg.  414;  Fitzpatrick  T.  Phelan,  58 
Wis.  2.')4. 

15  Adams  v.  Patterson,  ?,n  Cal.  122. 

16  Norton  v.  Larco,  30  Cal.  132. 


423  ACCOUNTS,  §§  610-512 

be  applied  as  payment.^^  Mutual  accounts  are  made  up  of 
matters  of  set  off,  where  there  is  an  existing  debt  on  the  one 
side  and  a  credit  on  the  other;  or  where  there  is  an  understand- 
ing, express  or  implied,  that  mutual  deljts  shall  be  satisfied  or 
set  oft*  pro  tanto.  A  payment  made  on  an  account  and  not  in- 
tended as  a  set-off  pro  tanto,  does  not  make  a  mutual  account. 
Striking  a  balance  converts  the  set-off  into  a  payment.  And 
until  such  balance  is  struck  a  mutual  account  exists.^® 

§  610.  Joint  adventure.  A  bill  for  an  account  is  the  proper 
remedy  for  the  settlement  of  the  proceeds  of  a  joint  adventure, 
where,  in  consideration  of  an  outfit  and  advances  made  by 
plaintiff,  the  defendant  agreed  to  account  for  and  pay  over  a 
proportion  of  the  proceeds  of  his  laljor  and  speculation  of  every 
kind  for  a  certain  period  of  time,  although  the  parties  may  not 
have  been  technically  partners.  Xor  is  it  a  misjoinder  of  causes 
of  action  to  demand  in  the  same  action,  that  defendant  account 
for  and  refund  a  proportion  of  the  outfit  and  advances  made  by 
plaintiff  as  agreed  in  same  contract. ^^ 

§  611.  Partners.  An  action  of  account  at  law  may  be  brought 
by  one  partner  against  another,^  in  any  business.^^ 

§  612.  Bunning  accounts.  In  suits  on  running  account,  the 
whole  should  l)e  included  in  a  single  action.^^  Various  items 
of  an  account,  though  accrued  at  different  times,  may  be  united.^'' 

17  Warren  v.  Sweeney,  4  Nev.  101. 

ift  Norton  v.  Larco,  80  Cal.  126;  and  see  Stokes  v.  Taylor,  104  N. 
O.  8M. 

10  Garr  v.  Redman,  <;  Cal.  '>~A\  and  see  Blanehard  v.  Jefferson,  28 
Abb.  N.  C.  23P). 

20  Co.  Lltt.  171;  1  Montg.  on  PI.  4r>;  Itnnran  v.  Lyon,  .3  Johns. 
Ch.  ?,r^l\  8  Am.  Dec.  .'>13;  Atwater  v.  Fowler,  1  Edw.  Cli.  417;  Ogden 
V.  Astor.  4  Sandf.  813. 

21  Roe  I.anfair  v.  Lanfair,  IS  Pick.  21t!l:  ovcrrullnR  dicta  In  Mc- 
Mun-ay  v.  Kawson,  3  Hill,  ."»0;  sec,  also,  Kflly  v.  Kelly,  3  Barb.  419. 

22fJnemsey  v.  Cnrver,  8  Wend.  402;  24  Am.  r>ec.  00;  Bonsey  v. 
Wordsworth,  30  Knjr.  L.tw  tV-  i:«|.  2s;{:  IS  C.  li.  32.");  Wood  v.  PoriT. 
3  Kxfh.  442. 

2.TT)(>wH  V.  Ilotrhkiss,  10  N.  Y.  Lop.  Obs.  2S1 ;  Adams  v.  Holley, 
12  How.  Pr.  .320.  .As  to  when  sojiarate  acconnts  between  the  same 
parties  are  sejiarate  cansos  of  action,  .uid.  tlicrofore,  must  be 
separately  stated,  .see  Pliillips  v.  Berick,  H",  ,I()lins.  130;  8  Am.  Doc. 
290;  Stevens  v.  Loekwood,  13  Wend.  VAA\  28  Am.  Dec.  492;  Staples 
V.  Goodrich,  21  Barb.  317;  and  LonRworthy  v.  Knapp,  4  Abb.  Pr. 
115. 


^§  Olo-OlO  1  DU.MS    Ol'    CO.Ml'l,AlMTS.  434 

§  613.  When  action  lies.  The  action  of  account  lies  between 
niorchaiits  l)c't\\ocii  whom  there  is  a  privity.^''*  Against  an  at- 
torney for  nionov  received  from  liis  client.^^  By  a  cestui  que 
trust,  against  truslee  appointed  by  will  for  an  account.^  By 
receiver  against  his  deputy.-^  So,  by  a  slieritf  against  liis 
deputy.^'*  Against  a  receiver  appointed  to  receive  rents  and 
debts  of  another.^^ 

§  614.  Sufficiency  of  common  counts.  The  courts  of  almost 
all  the  states,  with  the  exception  of  one  or  two,  uphold  the 
suHiciency  of  the  common  counts,  in  actions  under  the  Code, 
in  all  cases  where  such  forms  were  sufficient  at  common  law,^*^ 
In  Minnesota  and  Oregon  the  use  of  the  common  count  in  such 
connection  in  not  permitted.-'*^ 

§  615.  By  an  assignee  on  an  account. 

Form  No.   12^, 

[Title.] 

The  plaintiff  complains  and  alleges: 

I.  That  on  the day  of ,  18.  .,  at  the  city  of 

,  the  defendant  was  indebted  to  one  E.  F.  in  the  sum 

of dollars,  on  an  account  for  money  lent  by  said  E.  F. 

to  said  defendant,  and  for  money  paid,  laid  out,  and  expended 
by  said  E.  F.  to  and  for  use  of  said  defendant,  and  at  his  request. 

24  2  Greenl.  Ev.  35;  1  Com.  Dip.,  Ac.  A.  B. 
26Breedin  v.  Kinglaiul,  4  Watts,  420;  3  Chit.  383. 

26  Bredin  v.  Deven,  2  Watts,  95. 

27  1  Roll.  118-120;  1   Com.  Dig.  191. 

28  Id. 

2»1  Com.  Dig.  190;  1  Koll.  llfi;  G  Mod.  92. 

30Abadie  v.  Carrlllo,  32  Cal.  172;  Wilkins  v.  Stidger.  22  id.  235; 
Magee  v.  Kast,  49  id.  141;  Merritt  v.  Glidden,  39  id.  5.59;  2  Am.  Rep. 
479;  Pavisifli  v.  Bean,  48  Cal.  364;  Curran  v.  Cnrran,  40  Ind.  473; 
Johnson  v.  Kilgore,  39  id.  147;  Commissioners  v.  Verbarg,  63  id. 
107:  Bouslog  V.  Garrett,  39  id.  338;  Noble  v.  Burton,  id.  206;  Gwalt- 
ney  v.  Cannon,  31  id.  227;  Raymond  v.  Ilanford.  6  N.  Y.  S.  C.  312; 
Fells  V.  Vestvali.  2  Keyes,  1,52;  Ball  v.  Fulton  Co.,  31  Ark.  379: 
Jones  V.  Mial.  82  N.  C.  2.52;  Enislie  v.  Leavpnworth.  20  Kan. 
562:  .\llen  v.  Patterson,  7  N.  Y.  476;  57  Am.  Dec.  .542;  Moagher 
V.  Morgan,  3  Kan.  372;  Clark  v.  Fensky,  id.  .389;  Carroll  v.  Paul's 
Ex'rs.  16  Mo.  226:  Farron  v.  Slierwood.  17  N.  Y.  227;  Hosley  v. 
Blark,  28  id.  438;  Hurst  v.  Litrhfield,  .39  id.  377;  Queen  y.  Gilbert, 
21  Wis.  .395;  Grannis  v.  Hooker.  29  id.  65:  Wliite  Pine  County  Bank 
v.  Sadler.  19  Xev.  98. 

••ii  Foerster  v.  Kirkpatrick,  2  Minn.  210;  Bowen  v.  Emmerson,  3 
Oreg.  452. 


4:25  ACCOUNTS.  §§  G16,  617 

II.  That  thereafter  said  E.  F.  assigned  said  indebtedness  to 
tills  plaintiff,  of  which  tlie  defendant  liad  due  notice. 

III.  That  the  defendant  lias  not  paid  the  same,  nor  any  part 
chereof.^- 

[Demaxd  of  Judgment.] 

§  616.   On  an  account  stated. 

Form  No.   130. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18. .,  at , 

an  account  was  stated  between  the  plaintiff'  and  the  defendant, 

and  upon  such  statement  a  balance  of dollars  was 

found  due  to  the  plaintiff  from  the  defendant. 

II.  That  the  defendant  agreed  to  pay  to  the  plaintiff  the  said 
balance  of dollars. 

III.  That  he  has  not  paid  the  same. 

[Demand  of  Judgment.] 

§  617.  Essential  averments.  Where  tlie  parties  to  an  ac- 
count have  examined  it,  and  agreed  upon  a  certain  si\m  of  money 
as  the  balance  justly  due  thereon  from  one  party  to  the  other, 
then  such  account  has  become  an  account  stated,  and  an  action 
tliereon  is  not  founded  upon  the  original  items,  but  upon  the 
balance  ascertained  l)y  the  accounting.^^  The  material  allega- 
tions in  sucli  action  are:  1.  That  plaintiff  and  defendanr  came 
to  an  accounting  together;  2.  On  such  accounting  defendant 
was  found  indebted  to  the  plaintiff  in  a  specified  sum;  3. 
Which  defendant  promised  to  pay;  4.  And  has  not  paid.  What 
constitutes  an  account  stated  is  a  question  of  law.-'''*  An  aver- 
ment that  one  party  made  a  statement  of  an  account  and  de- 
livered it  to  the  other,  wlio  made  no  objection  to  it,  is  not  an 
averment  that  an  account  was  stated  l)etween  them.     At  most, 

12  As  to  ju'tifms  l>y  nn  Jissijrnce.  soe  §  .^40,  ante. 

•■!'5  Benitps  V.  I'.ickn*'II,  2  West  Coast  Kep.  r?.'.n;  Oir  v.  TTni.kins,  1 
irl.  1.".7;  Hcndy  v.  Marrh.  7.'»  Cal.  Tm\\  CofTep  v.  WiHianis,  10.3  id. 
.^.Vi;  Mff'artliy  v.  y\\.  Ti-f-arte.  etp..  Co..  Ill  id.  .?2.«t:  IToIiups  v.  Pape, 
11)  Orep.  2.12:  and  sre  'I'nunan  v.  Owpns,  17  id.  '^2?,:  Xostrand  v. 
IMtniKs.  127  N.  V.  :i.">;  Anzoriiis  v.  Xa^lf^e,  74  Cal.  OO;  Kinyslcy  v. 
Malfhpr.  .".C  IIiui.  .".47. 

■''4Lorkwo<)d  v.  'i'lioinf,  11  .\.  V.  170;  (',2  .\ni.  Deo.  SI;  Craliani  v. 
Camnian.  l.T  IIr)\v.  I'r.  :;"'.l.  An  ncfonnt  can  not  be  atatpd  with 
fpferpnre  to  a  dt'bt  payaldo  on  a  continKPiK-y.  B.nird  v.  Crank,  08 
Cal.  293. 

54 


§018 


rOKMS    OK    CO.MI'LAINTS.  -iX'G 


these  are  matters  of  evidence,  tending  to  sliow,  but  not  conclu- 
sively, an  account  staled.''""'  Where,  alter  the  death  of  one  part- 
ner, an  account  is  stated  between  defendant  and  the  copartner- 
ship, admitting  a  balance  due  by  him  for  goods  sold  in  the  life- 
time of  the  deceased,  the  surviving  partner  may  recover  without 
averring  the  death  of  the  oilier  partner,  and  the  survivorship.'^'' 
A  comi)laint  stating  that  whereas  said  defendant  was  justly 
indebted  to  plaint  ill's  in  the  sum  of  three  thousand  dollars,  for 
money  paid,  laid  out,  and  expended  for  the  use  and  benefit  of 
said  defendant,  and  at  his  special  instance  and  request,  to-wit, 
at,  etc.,  and  on  the  1st  day  of  April,  1857,  and  in  the  sum  of 
three  thousand  dollars,  for  money  found  to  be  due  from  the  de- 
fendant to  plaintiffs  on  an  account  then  stated  between  them; 
and  the  said  defendant  being  so  indebted  to  the  plaintiffs,  after- 
wards, to-wit,  on  the  day  and  year  aforesaid,  at  the  place  afore- 
said, undertook,  and  faithfully  promised  the  plaintiffs,  to  pay 
the  same,  etc.,  and  that  said  sum  is  due  and  unpaid,  sufficiently 
states  a  cause  of  action.^^  A  complaint,  although  it  refers  to 
an  account,  should  indicate  the  nature  and  character  of  the 
claim,  and  the  period  within  which  it  arose.-"^^ 

§  618.  Account,  iiow  stated,  and  effect  of.  The  mere  ren- 
dering of  an  account  does  not  make  a  st-ated  one.  Yet  if  it 
is  received,  its  correctness  admitted,  balance  claimed,  or  ofl'er 
made  to  pay,  it  becomes  a  stated  account.^®  An  account  in 
writing,  showing  a  balance,  or  that  there  is  none,  does  not  re- 
quire a  signature  to  make  it  a  stated  account.'*''  And  it  is  not 
affected  by  its  balance  being  introduced  into  a  subsequent  ac- 
count. The  complaint  must  show  a  demand  in  favor  of  the 
plaintiff  acceded  to  by  the  defendant.'*^  AVherc  a  party  receives 
an  account,  and  keeps  it  for  a  reasonable  time  without  objecting 
to  it,  he  will  l)e  considered  as  acquiescing  in  it,  and  it  will  have 
the  force  of  an  account  stated.^     But  where  a  merchant  sends 

»>  Emery  v.  Pease.  20  N.  Y.  02. 

3fi  Homes  V.  DeCamp.  1  .Tohns.  PA;  .3  Am.  Dec.  293. 

37  De  Witt  Y.  Porter,  1.*^  Cal.  171.  An  express  promise  to  pay  need 
not  be  proved.    Claire  v.  Claire,  10  Neb.  54. 

.38  Farcy  v.  T.ee,  10  Abb.  Pr.  14.3. 

39Toland  v.  Spragiie,  12  Pet.  300. 

40  Baker  v.  Riddle,  Baldw.  304. 

■ii  TenT  v.  Sifklos.  13  Cal.  427. 

42To-v\sloy  V.  Denison.  4.".  P.arb.  400;  Fleisohner  v.  Knbli,  20  Orej?. 
329;  Kent  v.  Highleyman,  28  Mo.  App.  614;  Eichel  v.  Sawyer,  44 


•i27  ACCOUXTS.  §  oiS 

an  account  current  to  another  residing  in  a  different  country, 
and  he  keeps  it  through  two  j'ears  without  making  an  objection, 
it  becomes  an  account  stated.'*^  Long  acquiescence  makes  an 
account  an  account  stated.^  The  statement  of  an  account  is 
not  conclusive,  but  throws  u2)on  the  party  claiming  error  the 
burden  of  jDroving  it."*^  But  if  there  have  been  mutual  com- 
promises, it  will  operate  as  an  estoppel  in  pais^*^  Where  ac- 
counts bear  upon  their  face  "  audited  and  approved,"  and  '''  cer- 
tified to  be  correct,"  they  become  instruments  of  writing 
witliin  the  meaning  of  the  statute,  and  are  not  barred  by  that 
portion  of  the  Statute  of  Limitations  applying  to  accounts.'*^ 
An  account  between  merchant  and  merchant,  closed  by  ces- 
sation of  mutual  dealings,  does  not,  therefore,  become  an  ac- 
count stated."**  An  account  stated  alters  the  nature  of  the 
original  indebtedness,  and  has  the  effect  of  a  new  promise.^'' 
The  rule  in  matters  of  account  is  applicable  to  a  private  corpo- 
rate body,  engaged  in  trade,  and  conducting  its  affairs  by  officers 
and  agents.^^  Where  an  account  stated  is  assented  to,  either 
expressly  or  impliedly,  it  becomes  a  new  contract,  and  an  ac- 
tion upon  it  is  not  founded  upon  the  original  items,  but  upon 
the  balance  agreed  to  by  the  parties.  But  an  accounted  stated, 
in  order  to  constitute  a  contract,  should  appear  to  be  something 
more  than  a  mere  memorandum,  and  should  show  ujion  its  face 
with  clearness  and  certainty  that  it  was  intended  to  be  a  final 
settlement  up  to  date.^^  An  allegation  that  one  party  made  a 
statement  of  an  account  and  delivered  it  to  another,  who  made 
no  objection  to  it,  is  not  an  allegation  that  an  account  was 
stated  between  them."^^  And  although  a  paper  offered  in  evi- 
dence for  a  particular  purpose  may  be  an  account  stated,  yet  if 

Fed.  Rep.  8.53;  Martyn  v.  Arnold.  30  Fla.  44fJ;  Brodnax  v.  Stoinhardt, 
48  I.a.  Ann.  C82. 

43  Freeland  v.  Heron.  7  Cranch,  147. 

44  1  Story's  Eq.  Jur..  §  .520;  Schettlpr  v.  Smith.  .'U  \.  Y.  Snpr.  Ct. 
(2  J.  &  Sp.t  17:  Stcnton  v.  .Teroino.  'A  X.  Y.  480. 

4^' Massaflmsetts  Life  Ins.  Co.  v.  rarpentcr.  41)  \.  Y.  OGS. 

4'!  Kofk  V.  lUmitz,  4  Tuily  (N.  Y.).  117. 

47  Sanniflison  v.  Hrown,  .">  C"al.  •". 

4**  ^randeviIle  v.  Wilson,  .'"t  Ciancli.  1.">. 

40  Carey  v.  I'.  A:  C  T'ftrolc-nni  Co.,  ;'.:'.  Cnl.  tMH:  Ilolmos  v.  De 
Cnnii>.  1  Johns.  PA;  '.',  Am.  Ix-c  liJi:'.;  Alloii  v.  Stevens,  1  N.  Y.  Leg. 
Obs.  p,m. 

f'OBrndlcy  v.  IJiciinrdsoii.  2  I'.Iatrlif.  .';4.".. 

Bl  Coffee  v.   WiJIi.-ims,   10.3   ('-.[].   .".(». 

02  St.  Louis,  etc..  Bottling'  Co.  v.  Colorado  Nat.  Bani<,  8  Col.  70, 


§^  Orj,  OvU  lUU.MS    Oi'"    CUMI'LAINTS.  438 

it  has  uot  boon  ploadod  and  reliod  upon  by  either  party  as  such, 
it  can  not  control  or  limit  the  riglits  of  the  parties  as  an  ac- 
count statod.'^^ 

§  619.  The  same  —  '*  errors  excepted."  An  account  in  writing, 
examined  and  signed,  will  be  deemed  a  stated  account,  notwith- 
standing it  contains  the  phrase  ''  errors  excepted.'"^*  Accounts 
stated  may  be  opened,  and  the  whole  account  taken  dc  novo, 
for  gross  mistake  in  some  cases;  but  only  when  the  error  aU'ects 
all  the  items  of  the  transaction.^^  And  when  a  party  goes  into 
particulars  he  is  confined  to  those  items  improperly  charged, 
and  the  remainder  of  the  account  must  stand.^^ 

§  620.  Opening  an  account  stated.  When  an  account  is  set- 
tled by  the  parties  themselves,  their  adjustment  is  final  and 
conclusive,^'^  even  as  to  the  guarantor.'^^  It  is  not  at  all  im- 
portant that  the  account  be  made  out  by  one  party  against  the 
other.  When  a  consignor  rendered  an  account  to  the  consignee, 
it  was  a  stated  account  from  the  time  the  consignor  demanded 
payment  of  the  balance.^^  So  where  the  agent  presented  the 
account.^  The  practice  of  opening  accounts  stated  is  not  en- 
couraged, and  should  only  be  done  on  clear  proof  of  error  or 
mistake.*'^  But  fraud  is  a  sufficient  ground  to  open  an  account 
stated.^^     The  effect  of  surcharging  and  falsifying  an  account  is 

53  Bump  V.  Cooper,  20  Oreg.  527. 

54Branner  v.  Chevalier,  9  Cal.  353;  Troup  v.  Haight,  Hopk.  272. 

St-  Branger  v.  Chevalier,  9  Cal.  353;  Hagar  v.  Thomson,  1  Black,  80. 

156  Branger  v.  Chevalier,  9  Cal.  353;  Perkins  v.  Hart,  11  Wheat. 
237;  and  see  Aiizei-ais  v.  Naglee,  74  Cal.  60;  Devermon  v.  Shaw,  69 
Md.  199;  9  Am.  St.  Hop.  422. 

57  Hager  v.  Thomson,  1  Black,  80. 

68  Bullock  V.  Boyd,  2  Edw.  Ch.  293. 

69  Toland  v.  Sprague,  12  Pet.  300. 

00  Willis  V.  Fernegan,  2  Atk.  251;  Denton  v.  Shellard,  2  Ves.  sen. 
239;  Murray  v,  Taland,  3  Johns.  Ch.  .569. 

61  Wilde  V.  Jenkins,  4  Paige  Ch.  481;  Lockwood  v.  Thorne,  11  N. 
y.  170;  62  Am.  Dec.  81.  An  account  stated  is  still  open  to  impeach- 
ment for  mistakes.  St.  Louis,  etc.,  Bottling  Cb.  v.  Coloi-ado  Nat. 
Bank,  8  Col.  70. 

fi2  2  Dana's  Ch.  Pr.  764;  Frankel  v.  Wathen,  .58  Hun,  543;  Powell 
V.  Heisler.  16  Oreg.  412;  Weed  v.  Dyer,  53  Ark.  1.55;  Samson  v. 
Freedman.  102  N.  Y.  699;  Hawley  v.  IlaiTan,  79  Wis.  379.  While 
an  account  stated  can  be  attacked  for  mistake,  in  cases  in  which 
other  contracts  can  be  so  attacked,  the  mistake  must  be  put  in 
Issue  by  the  pleadings.     Hendy  v.  March,  75  Cal.  566;  see  Graham 


429  ACCOUNTS.  §§  621,  622 

to  leave  it  an  account  stated,  except  so  far  as  it  can  be  iui- 
pugned.*^^  An  account  can  not  be  reopened  by  one  of  the  parties 
without  proof  of  the  items,  and  that  some  one  or  more  of  them 
ought  not  to  have  been  allowed.^'*  If  the  complaint  is  verified, 
and  the  answer  does  not  charge  fraud  or  mistake,  evidence  of 
overcharge  is  not  admissible.*'^ 

This  rule  is  founded  upon  the  idea  that  when  an  account  be- 
tween parties  is  stated,  with  debit  and  credit  sides,  and  the 
matter  in  controversy  is  stated  therein,  the  presumption  of  law 
is  that  the  account  is  correct,  unless  it  is  shown  that  fraud, 
omission,  or  mistake  exists.^  An  account  against  the  state, 
certified  by  the  auditor,  is  conclusive  on  him  only  as  to  the  cor- 
rectness of  the  statements  therein  contained. ^^ 

§  621.  Erasure.  An  erasure  in  a  settled  account,  not  shown 
to  have  been  made  before  its  settlement,  is  sufficient  to  avoid  it.*'^ 
The  presumption  is  that  the  alteration  was  made  after  execu- 
tion.6» 

§   622.   For  a  general  balance  of  account. 
Form  No.    131, 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  indebted  to  the  plaintiff  in  the  sum 

of   dollars,  for  tlie  l)alance  of    an  account    for 

groceries  sold  and  delivered  })y  tlic  plaintiff  to  defendant,  and 
for  services  performed  by  the  plaintiff  for  the  defendant  as  an 

V.  Harmon,  84  id.  181.  Tho  rule  that  where  there  is  an  account 
stated  the  parties  can  not  ro  ijack  and  attaol<  the  orijxinal  items 
of  tlie  account,  unless  upon  projier  averment  of  fraud  or  mistake, 
does  not  apply  whore  tho  main  issue  is  whether  there  was  such  a 
mist.nke.     Coffee  v.  Williams,  10.3  Cal.  5.50. 

«•■»  Pit  V.  Cholmondeley,  2  Ves.  sen.  r>C}r>;  Perkins  v.  Hart,  11  Wheat. 
2ri7;  Storj-'s  Eq.  PI..  §  801 ;  1  Story's  Eq.  .Tur.,  §  523:  Bruen  v.  Hone, 
2  liarb.  58fl;  Bullock  v.  Boyd.  2  Edw.  Oh.  293;  Phillips  v.  Beldon, 
Id.   1. 

*!•«  Rutphen  v.  rushman.  ."..'.  III.  180. 

«r.  Plijllips  V.  Beiden,  2  Edw.  1. 

"ifiirroll  V.  Paul,  in  Mo.  220.  The  party  ol)Jectiiip  must  clearly 
Hhow  that  lie  has  iKcn  misled  by  the  fraud  or  mistake.  Harley  v. 
Eleventh   Ward   Bank.  70  N.  Y.  <:T8. 

f'TSt.'ile  V.  innicsfm,  7  Mo.  3.53. 

«R  Provost  V.  r.r.'itz.  Pet  C.  Of.  .304. 

«fild.;  but  compare  Malarln  v,  United  States,  1  Wall.  (IT.  S.)  282. 


§g  {j'i'3,  i}'H  FOKMS    OK    COMPLAINTS.  430 

acc-ouiitanl,  and  for  toimuissions  oi"  plaintill*  on  the  sale  for  de- 
fondant  of  various  artitlet;  of  farm  produce,  and  for  moneys 
paid  by  plaintilf  for  defejidant's  use;  the  whole  furnished,  done, 
and  jierformed  at  the  request  of  the  defendant,  between  tlie 

day  of ,  18...  and  the day  of 

,  18.  . ;  that  the  whole  amount  and  aggregate  value 

of  which  items  is dollars,  no  part  of  which  has 

been  paid,  except  the  sum  of dollars,  the  balance 

of  account  first  aforesaid  still  being  unpaid. 

11.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
tliereof. 

[Demand  of  Judgment.]'''*' 

§   623.   Upon  an  account  of  services. 
Form  No.   132. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  between  the   day  of   ,  18. ., 

and  the day  of 18.  .,  at  the  city  of 

,  the  plaintiff  performed  work,  labor,  and  services 

[state  the  services]  for  the  defendant  at  his  request. 

II.  That  the  same  were  reasonably  Avorth  the  sum  of 

dollars. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

S   C24.    The  same  —  another  form  —  common  count. 
Form  No.   133. 
[Title.] 
The  plaintiff  complains,  and  alleges: 
I.  That  the  defendant  is  indebted  to  the  plaintiff  in  the  sum 

of dollars  on  an  account  for  the  work,  labor,  and 

services  in  [state  the  service]  performed  at  the  request  of  the  de- 

70  See  Rogers  v.  Duff.  97  Cal.  60.  A  complaint  in  an  action  of 
assumpsit  to  recover  a  specified  sum  on  account  of  worlv  anrt  lal)or 
pcrforrDod,  and  on  account  of  goods,  wares,  and  mercliandiso  sold 
and  delivered,  is  not  subject  to  a  demurrer  for  uncertainty  upon  the 
ground  that  the  complaint  does  not  state  how  much  of  tlio  sum  sued 
for  was  due  for  worlv  and  labor,  and  how  much  for  goods,  wares, 
,nnd  mercliandise.  Fam-ell  v.  Murray,  104  Cal.  404;  and  see 
Manning  v.  Dallas,  73  id.  420. 


431  ACCOUNTS.  §§  625-627 

f endant  at ,  between  the day  of , 

18.  .,  and day  of ,  18.  . 

II.  That  he  has  not  paid  the  same,  nor  any  part  thereof.'^^ 
[Demand  of  Judgment.] 

§  625.  Services.  A  (complaint)  on  an  account  for  services 
rendered  a  third  person  charging  an  original  liability  is  suflB.- 
cient.'^ 

§  626.  Time.  In  order  to  be  sufficiently  definite  and  certain, 
the  complaint  should  show  the  nature  and  character  of  the 
claim,  and  the  period  within  which  it  arose.'^^ 

§   627.   The   same  —  by   an  architect. 
Form  No.   134. 
[Title.] 
The  plaintiil  complains,  and  alleges: 

I.  That  between  the  day  of   ,  18.  ., 

and  the day  of ,  18 .  . ,  at , 

the  plaintitf  performed  work,  labor,  and  services  for  the  defend- 
ant, and  at  his  request,  as  architect,  in  forming  and  drawing 
plans,  and  making  estimates  for,  and  superintending  the  erection 

of  a  row  of  buildings  to  be  known  as  Cottage  Row,  in 

street,  in  the  city  and  county  of  San  Francisco. 

II.  That  the  said  services  were  reasonably  worth  the  sum  of 
dollars. 

in.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

71  Thie  form  Is  sustained  by  Moffet  v.  Sackett,  18  "N.  Y.  .522;  see 
>rannlnK  v.  Dallas.  7."^  Cal.  420.  An  allocation  in  a  complaint  for 
Bervicf'S  that  the  services  were  "  of  the  agreed  i)rice  and  reasonable 
value,"  but  which  does  not  state  that  the  plaintiff  was  employed 
by  the  defendant,  or  that  he  performed  the  services  at  the  de- 
fendant's request,  Is  InsutHclent  to  show  a  consideration  for  the 
defendant's  promise  io  pay.     Bassford  v.  Swift,  89  N.  V.  Supp.  337. 

72  wine  V.  f'anjpbell.  15  Mo.  27.%. 

7.T  Farcy  v.  Lee.  10  Abb.  Pr.  143.  An  allegation  of  an  Indebted- 
ness of  a  date  lontr  i)rlor  to  the  commenccTiient  of  the  action  is  no 
evidence  of  an  exlstinp  Indebtedness  upon  the  date  of  fllinp:  the 
complaint,  and  such  allegation  Is  valueless.  P^airchlld  v.  King,  102 
Oal.  320. 


§§  (•,-^>8-(;;U)  FORMS    OF   COMPLAINTS.  432 

§  {jzS.   The  same  —  another  form  —  common  count. 

fonii  No.   135. 

[TlTI.K.J 
The  plaintiir  complains,  and  alleges: 

I.  That  the  defendant  is  ijidebted  to  the  plaintiff  in  the  sum 
of  dollars,  on  account  for  work,  labor,  and  ser- 
vices as  architect,  in  forming  and  drawing  plans,  and  making 
estimates   for,  and   superintending   the   erection   of  a   row   of 

buildings  to  be  known  as  Cottage  liow,  in street, 

in  the  city  and  county  of  San  Francisco,  performed  at  the  re- 
quest of  the  defendant  between  the day  of , 

18 .  . ,  and  the day  of ,  18 . . 

II.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Demand  of  Judgment.] 

§  629.   The  same,  by  a  broker  for  commissions. 
For)ii   No.   136. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  between  the   day  of   ,  18.  ., 

and  the day  of ,  18.  .,  the  plaintiff  per- 
formed services  for  the  defendant  at  his  request,  as  broker,  at 
the  city  and  county  of  San  Francisco,  in  the  purchase  [and 
sale]  of  [government  bonds,  state  stock,  negotiable  securities, 
real  estate,  personal  property,  or  otherwise]. 

II.  That  such  services  were  reasonably  worth  the  sum  of 
dollars. 

III.  That  the  defendant  has  not  paid  the  same  nor  any  part 
thereof. 

[Demand  of  Judgment.]'''^ 

§  630.   The  same  —  another  form  —  common  count. 

Form  No.    137. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  indebted  to  the  plaintiff  in  the  sum 

of dollars,  on  an  account  for  services  as  broker  in 

the  purchase  [and  sale]  of  [government  bonds,  state  stock, 
negotiable  securities,  real  estate,  personal  property,  or  other- 

74  Complaint  in  aotion  by  real  estato  brol\er3  to  recover  a  share 
of  the  commissions  paid  to  other  broliers.  See  Gorham  v.  Heinmn, 
90  Cal.  34G. 


433  ACCOUNTS.  §§  631-633 

wise],  performed  at  the  request  of  the  defendant,  at  the  city 

and   county  of   San  Francisco,  between   the day    of 

,  18 .  . ,  and  the  day  of  , 

18.. 

II.  That  the  defendant  has  not  paid  the  same  nor  any  part 
thereof. 

[DEiiAXD  OF  Judgment.] 

§  631.   By  cai-rier,  ag-ainst  consignor,  for  freight. 

Form  No.   138. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  between  the   day  of   ,  18 .  . , 

and  the day  of ,  18.  .,  the  plaintiff  per- 
formed work,  labor,  and  services  for  the  defendant,  at  his  re- 
quest, in  carrying  in  their  vessel,  the    ,  sundry 

goods  and  merchandise  from to 

II.  That  such  services  were  reasonably  worth  the  sum  of 
dollars. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

§  632.   The  same  —  another  form  —  common  count. 

Form  No.   139. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  indebted  to  the  plaintiff  to  the 

amount  of dollars,  on  an  account  for  work,  labor, 

and  services,  in  carrying  their  vessel,  the ,  sundry 

goods  and  merchandise,  from to ,  at 

the  request  of    the    defendant,  between   the   day  of 

,  18 .  . ,  and  the day  of ,  18 .  . 

IT.  That  the  defendant  has  not  paid  the  same  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

5   633.   The  same  —  against  consignee. 
Form  No.   140. 

[Title.] 
Tho  plaintiff  complains,  and  alleges: 

T.  That  betwpon  the   day  of   18.., 

and  the flay  of ,  18.  .,  the  plaintiff  per- 

VoL.  T— 55 


§§  03i-G3U  FORMS    OF    C'OMl'LAIKTS.  434 

formeil  work,  labor,  aud  services  in  carrying  in  their  vessel,  the 

,  sundr}'  goods  and  niercliandiso,  from 

to ,  which  were  consigned  to  the  defendant  and 

delivered  by  plaintilf  at   ,  to  the  defendant,  and 

by  him  accepted. 

II.  That  such   s<.n-vices  were  reasonably   worth  the  sum  of 
dollars. 

III.  That  the  defendant  lias  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

§   634.  The  same  —  another  form  —  common  count. 

Form   No.    141. 

[Title.]     , 
The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  indebted  to  the  plaintiff  to  the 

amount  of dollars,  on  account  for  work,  labor,  and 

services,  in  carrying  in  their  vessel,  the   ,  sundry 

goods  and  merchandise,  from   to   , 

which  were  consigned  to  the  defendant  and  delivered  by  plain- 
tiff at  to  the  defendant,  and  by  him  accepted, 

between  the  day  of  ,  18.  .,  and  the 

day  of ,  18.. 

II.  That  the  defendant  has  not  paid  the  same  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

§  635.  Interest.     Freight  does  not  bear  interest  till  after  de- 
mand.'^'* 

§   636.   By  editor  for  services. 

Form  No.   142. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  between  the   day  of   ,  18 . . , 

and  the day  of ,  18 . . ,  at  the  city  and 

county  of  San  Francisco,  the  plaintiff  performed  services  for 
the  defendant,  at  his  request,  as  an  editor,  in  conducting  the 

newspaper  of  the  defendant  known  as  "  The   ," 

and  in  writing  and  preparing  articles  and  paragraphs  for  the 
same. 

75  Schureman  v.  Withers.  Anth.  N.  P.  230. 


435  ACCOUNTS.  §§  637-639 

II.  That  such  services  were  reasonably  worth  the  sum  of 
dollars. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

§  637.   The  same  —  another  form  —  comm.on  count. 
Form  No.   143. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  indebted  to  the  plaintiff  in  the  sum 

of dollars,  on  an  account  for  services  as  an  editor 

in  conducting  the  newspaper  of  the  defendant  known  as  "  The 
,"  and  in  writing  and  preparing  articles  and  para- 
graphs for  the  same,  performed  at  the  request  of  the  defendant, 

at  the  city  and  county  of  San  Francisco,  between  the 

day  of ,  18-  •,  and  the day  of , 

18.  . 

II.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

§  638.  Contributor's  services.  The  furnishing  of  articles  for 
publication,  at  the  request  of  the  publisher,  is  not  of  itself  a 
service  for  which  a  promise  to  pay  will  be  implied.  See  au- 
thorities under  §  641,  post. 

§   639.   By  author  for  editing  and  compiling"  book. 

Form   No.    144. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  between  the   day  of   ,  18.  ., 

and  the flay  of ,  18 .  . ,  at  the  city  and 

county  of  San  Francisco,  the  plaintiff  performed  work,  labor. 
and  services  for  the  defendant,  at  his  request,  in  compiling  and 

writing  a  certain  book,  entitled  "  The   ,"  and  in 

preparing  the  same  for  the  press,  and  revising  and  correcting 
t]ie  proofs  for  the  same. 

TI.  That  such  services  were  reasonably  worth  the  siim  of 
dollars. 

TTT.  Tbat  tbc  dcfcndiint  has  not  paid  the  same,  nor  any  part 
thereof. 

[DkM  AND  Ol-   Jl-DfiMEXT.] 


§§  G4:0-G4\J  1-0KM8    Ol-    COMl'LAINT.S.  436 

§   640.   The  same  —  another  form  —  common  count. 

form  No.   145. 

[Title.] 

The  pluiiitill"  complains,  and  alleges: 

I.  That  the  defendant  is  intlebted  to  the  plaintiff  in  the  sum 

of   dollars,  on  an  account  lor  work,  labor,  and 

Bervices,  in  compiling  and  editing  a  certain  book,  entitled  "  The 

,"  and  in  preparing  the  same  for  the  press,  and 

revising  and  correcting  the  proofs  of  the  same,  performed  at 
the  request  of  the  defendant,  at  the  city  and  county  of  San 

Francisco,  between  the   day  of   ,  18.  ., 

and  the day  of ,  18 .  . 

II-  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

§  641.  Author's  services.  A  stronger  case  is  required  to  raise 
an  implied  promise  on  the  part  of  the  publisher  to  pay  for  the 
services  of  the  author  than  in  the  case  of  other  services.'^^  We 
can  not,  however,  see  any  reason  why  a  stronger  case  is  required 
to  raise  an  implied  promise  to  pay  on  the  part  of  publishers, 
for  services  rendered  them,  than  for  any  other  class  of  persons. 

§  642.   For  services  and  materials  furnished. 

Form  No.   146. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  between  the day  of ,18..,  and 

the day  of ,  18.  .,  at  the  city  and  county 

of  San  Francisco,  the  plaintiff  performed  work,  labor,  and  ser- 
vices for  the  defendant,  at  his  request,  in  [insert  nature  of  work], 
and  furnished  materials  to  the  defendant  in  and  about  the  said 
work,  on  the  like  request. 

IT.  That  such  services  and  materials  were  reasonably  worth 
the  sum  of   dollars. 

76  See,  as  to  the  rijrhts  of  the  author  without  copyriffht,  In  Donald- 
son V.  Beoket,  17  Pari.  Ilist.  9!X):  .iudjjment  reported  in  4  Burr. 
^408;  Thurlow  arguendo,  in  Tonson  v.  Collins.  1  W.  Hi.  BOO;  Yates 
arguendo,  id.  ?,?,?,.  This  case  was  never  decided.  Beckford  v.  TTood, 
7  T.  R.  020:  nnd  see  027:  Chappell  v.  Purday,  14  Mee.  &  W.  303; 
.Teffrers  v.  P.oosoy.  ?,o  Enjr.  L.  &  E.  1;  Wheaton  v.  Peters,  8  Pet. 
591;  S.  C.  n  Curtis'  Decis.  223. 


437  ACCOUNTS.  §§  643-645 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Demand  of  Judgment.]  "^"^ 

§   643.   The  same  —  another  form  —  common  count. 

Form  No.   147. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  indebted  to  the  plaintiff  in  the  sum 
of dollars,  on  an  account  for  work,  labor,  and  ser- 
vices of  the  plaintiff,  performed  at  the  request  of  the  defendant, 
in  [insert  nature  of  work],  and  for  materials  furnished  by  the 
plaintiff  in  and  about  the  said  work,  on  the  like  request,  be- 

tweeen   the    day    of  ,    18 .  .,  and    the 

day  of ,  18. .,  at  the  city  and  county 

of  San  Francisco. 

II.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§   644.   For  tuition  bills. 

Form  No.  148. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  Tliat  between  the   day  of  ,  18 .  . , 

and  the day  of ,  18.  .,  at  the  city  and 

county  of  San  Francisco,  the  plaintiff,  at  the  request  of  the 
defendant,  performed  work,  labor,  and  services  in  instructing 
his  children  in  various  branches  of  learning,  and  furnished  them 
with  books,  papers,  and  other  things  necessary  in  a.nd  about 
said  work,  at  the  like  request,  and  provided  them  with  board, 
lodging,  and  other  necessaries. 

II.  That  such  services  and  materials  furnished  were  reason- 
ably worth  the  sum  of dollars. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

I  645.   The  same  —  another  form  —  common  count. 

Form  No.   149. 

[TiTr.E.] 
The  plaintiff  complains,  and  alleges: 

T.  That  tho  dpfondnnt  is  indebted  to  tlic  plaintiff  in  tlic  sum 
of do11;u-s,  on  an  account  for  the  work,  labor,  and 

77  See  Katz  v.  Bodfonl,  77  Tal.  ?,VX 


§(145  I'Oli.MS   OK   (  OMTLAIXIS.  43S 

sorvii'os  porl'onm'd  at  the  rotjuosi  ol"  the  defeiidant,  in  instruct- 
ing his  c'liilciren  in  various  useful  branches  ol"  K'arning,  and  for 
books,  papers,  and  other  necessary  things  fui-uislied  by  this 
phiintifV  in  and  about  said  work,  at  the  hke  recjuest,  and  for 
tlie  board,  lodging  and  other  necessaries  for  said  children,  pro- 
vided by  the  plaintiff  during  said  time,  at  the  like   request, 

between  the    day  of    ,   18.  .,  and  the 

day  of ,  18 . . ,  in  the  sum  of 

dollars. 

II.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof   [except,  etc.] 

[Demand  of  Judgment.] 


CHAPTER  II. 

ON   AWAKDS. 

§  646.   On  an  award  of  arbitrators  —  common  form. 
Form  No.  130. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the. day  of   ,  18. .,  at 

,  disputes   and   differences   existed   between   the 

plaintiff  and  defendant  concerning  [a  demand  of  the  plaintiff 
for  labor  and  service  rendered  by  him  for  the  defendant  at  his 
request],  and  thereupon,  on  the  day  last  aforesaid,  the  plaintiff 
and  defendant  agreed,  in  writing,  to  submit  the  same  to  the 
award  of  A.  B.  as  an  arbitrator  between  them,  a  copy  of  which 
said  agreement  and  sul)mission  is  hereunto  annexed^,  marked 
"  Exhibit  A,"  and  made  part  hereof. 

II.  That  thereafter  the  said  A.  B.  duly  qualified  as  such  arbi- 
trator, and  heard  the  plaintiff  and  the  defendant  touching  their 

said  matters  of  dispute,  and  thereafter,  on  the day  of 

,  18 .  . ,  at ,  duly  made  and  published 

his  award,  in  writing,  of  and  concerning  the  matters  so  referred, 
and  thereby  said  arbitrator  awarded  and  declared,  that  after 
due  appearance  before  him  on  behalf  of  this  plaintiiT  and  said 
defendant,  he  found  that  the  said  defendant  was  justly  indebted 
to  this  plaintiff  in  the  sum  of  .,. .  .  dollars,  for  ser- 
vices aforesaid  [or  otherwise,  according  to  the  fact] ;  a  copy  of 
which  said  award  is  hereto  attached,  marked  "  Exhibit  B,"  and 
made  part  hereof. 

III.  That  the  plaintiff  duly  performed  all  Ihe  conditions  of 
said  award  on  his  part,  and  afterwards,  and  on   or  about  the 

day  of  ,  18.  .,  at •,  gave 

notice  of  said  award  to  the  defendant,  and  demanded  of  him 

payment  of  the  said  sum  of dollars,  so  awarded 

to  the  plaintiff  as  aforesaid. 

IV.  That  the  defendant  has  not  ]iiiid  tbc  snuie,  nor  any  part 
thereof,  and  there  is  now  due  from  ibe  dofendant  to  the  plain! iff 

thereon  the  sum  of  dollars,  with   interest  from 

the day  of ,18.. 

[Demand  of  Ji'dcmext.] 


§§  G17,  04:8  FOKMS    OF    COMPLAIXTS.  440 

§  647.  Essential  allegations.  A  complaint  Oil  an  award  must 
show  tlial  the  arbitrators  conrormud  to  the  Bubmission  and  the 
powers  of  tJie  arbitrators.^  It  was  the  r\ile  at  common  law, 
that  the  plaintitf  need  not  show  the  award  on  both  sides,  and 
if  there  be  a  condition  precedent  it  need  not  be  alleged.^  But 
under  the  Code,  performance  of  the  conditions  of  an  award 
must  be  pleaded,  as  well  as  in  the  case  of  a  contract.^  But  if 
the  arbitrators  award  that  one  of  the  parties  shall  pay  to  the 
other  a  certain  sum,  and  also  that  the  parties  shall  execute  to 
each  other  mutual  releases  of  all  actions,  etc.,  the  tender  of  a 
release  as  provided  by  the  award  is  not  a  condition  precedent 
to  the  right  to  try  an  action  to  recover  the  money.'*  The  award 
of  money  is  absolute  and  unconditional,  but  the  award  of  re- 
lease is  diiTerent;  they  are  concurrent  acts,  and  neither  party 
can  compel  the  other  to  execute  a  release  without  the  tender 
of  a  release  by  him.^  But  where  matters  awarded  to  be  done 
are  independent,  tender  or  demand  before  suit  need  not  be 
averred.^ 

Where  the  award  was  required  to  be  delivered  to  the  parties, 
an  allegation  that  it  was  ready  to  be  and  was  delivered  to  the 
plaintiff  is  not  sufficient."^  Notice  of  the  award  and  demand 
need  not  be  alleged,  unless  required  by  the  terms  of  the  sub- 
mission.^ This  is  not,  however,  the  law  in  California.  There 
notice  must  be  served  on  the  opposite  party  before  judgment  is 
entered.^ 

§   648.   Form  of  submission  —  when    must   be   in   -writing.     In 

California,  under  section  1282  of  the  Code  of  Procedure,  the 
submission  must  be  in  writing.  It  may  be  stipulated  in  the 
submission  that  it  be  entered  as  an  order  of  the  superior  court. 
When  so  entered  it  can  not  be  revoked  without  the  consent  of 
both  parties,  and  the  award  may  be  enforced  in  the  same  manner 

1  Gear   v.   Brocken,    Burn.    (Wis.)    SS;    Matthews  v.    Matthews,    2 
Curtis  C.  C.  10.-.. 
2MfKinstiy  v.  Solomons,  2  .Tohns.  57;  Di])lee  v.  Best,  11  id.  103. 

3  Cole  V.  Blunt,  2  Bosw.  116. 

4  Dudley  v.  Thomas,  23  Cal.  3n.5. 

6  Dudley  v.  Thomas,  23  Cal.  .30.". ;  Cole  v.  Blunt.  2  Bosw.  116. 

6  Xifhols  V.  Rensselaer  Co.,  22  Wend.  125. 

7  Pratt  V.  Hackett,  6  .Tohns.  14. 

«  ITodsflen  v.  Ilorridse,  2  Saniid.  02;  Rowe  v.  Young,  2  Brod.  & 
B.  233. 

»  See  Code  Civil  Pro.,  §  1280;  Mahoney  v.  Si)ring  Valley  Water 
Works.  52  Cal.  159. 


Ul  AWARDS.  §  6i9 

as  a  judgineut.  If  the  submissiou  is  not  made  an  order  of  court, 
it  may  be  revoked  at  any  time  before  the  award  is  made.^^  The 
clerk  must  be  authorized  by  the  stipulation  to  make  a  note  iu 
his  register,  and  he  must  in  fact  make  it  there;  the  mere  au- 
thority without  the  act  done  is  no  more  than  the  act  done  with- 
out the  authority  would  be.  Both  these  must  concur,  and  iu 
the  absence  of  either  there  is  no  jurisdiction.^^  A  stipulation 
that  judgment  in  the  District  Court  of,  etc.,  may  be  rendered 
upon  the  award  made  in  pursuance  of  the  submission  without 
a  stipulation  that  the  submission  shall  be  entered  as  a  rule  of 
the  court,  is  not  sufficient. ^^  If  the  submission  is  not  made 
a  rule  of  court,  an  action  may  be  maintained  upon  the  award, 
as  in  the  case  of  common-law  arbitration.  If  the  submission 
is  not  made  a  rule  of  court,  it  may  be  revoked  by  either  party 
at  any  time  before  the  award  is  made;  but  the  party  revoking 
is  liable  to  an  action  for  the  costs  and  damages  of  the  other 
party  in  preparing  for  and  attending  the  arbitration.'^^  In  'New 
York  an  action  may  be  maintained  upon  the  award. ^'^  But  a 
verbal  award  will  not  be  valid,  unless  a  verbal  submission  of  the 
matters  on  which  the  aw^ard  is  made  w^ould  be  binding  upon 
the  parties.^^  If  a  submission  is  attempted  to  be  made  under 
the  provisions  of  the  statute,  and  the  same  is  inoperative  for 
failure  to  comply  therewith,  it  is  not  valid  as  a  common-law 
submission.^®  But  a  stipulation  that  neither  party  shall  appeal 
from  an  award  is  not  binding.^^ 

§  649.  Who  may  make  submission.  Any  person  capable  of 
contracting  may  submit  to  arbitration  any  controversy,  except 
a  question  of  title  to  real  property,  in  fee,  or  for  life.^^  Thi.s 
statute  is  but  an  affirmance  of  the  common  law,  and  under  it 
the  parties  have  no  higher  rights  than  they  might  have  asserted 

10  See  Cfxle  Civ.  Pro.,  §  1283. 

11  Pieratt  v.  Kennedy.  43  Cal.  39.^;  Kyan  v.  Donphei-ty,  30  Id. 
21S;  and  see  Kettleinan  v.  Troadway.  C,7t  id.  r>OTv,  .Vcademy  of 
Sclen-cps  v.  Fletr-lier.  DO  id.  207. 

i2Faiivliild  v.  Doten,  42  Cal.  12S. 

13  rode  riv.  Pro.,  §  1200;  see  Sidlinfrpr  v.  Korkow.  S2  Cal.  42. 

14  Cope  V.  Cilltort.  4  Den.  .''.47;  Doidridc  v.  Ricldoy,  2  Hill,  271: 
Hays  V.  Hays.  2.*',  Wend.  303. 

1'-  Frenr-h  v.  New,  2.S  X.  Y.  147. 

in  Inhabitants  of  Deorficld  v.  .\rins,  20  Pick.  480;  32  Am.  Dec. 
228. 

17  Mnldrow  v.  Norrls,  2  Cal.  74:  r,c,  Am.  Dec.  313. 

18  Cal.  Code,  S  1281. 

56 


§  C50  FORMS    OK   COMPLAINTS.  i-l^i 

in  a  court  of  equity,  in  cases  of  fraud,  accident,  or  mistake.'® 
As  the  i^ubniibijion  to  arbitration  is  a  contract,  the  party  making 
the  submission  must  have  the  power  to  contract  with  reference 
to  the  subject-matter  in  dispute.  In  general  an  agent  has  no 
authority  to  submit  to  arbitration  unless  expressly  or  impliedly 
empowered  l)y  his  principal.-*^  But  an  agent  authorized  to 
prosecute  a  suit  has  authority  to  submit  to  a  reference,  under 
a  rule  of  court.^'  And  it  is  the  practice  throughout  the  Union 
for  suits  to  be  referred  by  consent  of  counsel,  without  special 
authority.^  If,  however,  an  unauthorized  submission  is  rati- 
fied by  the  principal,  he  is  bound  thereby.^^ 

§  650.  The  same  —  partners  —  parties  jointly  interested.  The 
great  weight  of  authority  is  in  support  of  the  doctrine  that 
the  right  to  submit  a  partnership  controversy  to  arbitration  is 
not  included  within  the  ordinary  course  of  partnership  business, 
and  consequently  that  one  partner,  unless  expressly  authorized, 
has  no  such  power,  so  as  to  bind  his  copartner.^*  The  partner 
who  makes  the  submission  is  himself  bound  by  it.^  Persons 
jointly  interested  can  not  in  general  bind  each  other  by  a  sub- 
mission to  arbitration  without  express  authority .^^ 

10  Muldrow  V.  Norris,  2  Oal.  74;  50  Am.  Dec.  313;  reaffirmed  in 
reacliy  v.  Ritchie.  4  Cal.  205. 

20  Trout  Y.  Emmons,  29  111.  433;  81  Am.  Dec.  326. 

21  Biickland  v.  Conway,  IB  IMass.  396. 

22  Holker  y.  Darker,  7  Ci-ancb,  43G:  Alexandria  Canal  Co.  v.  Swann, 
5  How.  (11.  S.)  83;  and  see  Greene  v.  Darlinp,  5  Mason,  201. 

23  Isaacs  V.  Beth  Hamedash  Sec.  1  Hilt.  469;  Detroit  v.  Jackson, 
1  Doug.  (Mich.)  106;  Memphis,  etc.,  R.  R,  Co.  v.  Scrugjrs,  50  Miss. 
284;  Furber  v.  Cliamberlain,  29  X.  H.  405;  Peri-y  v.  Mullipan,  .58  Ga. 
479;  Lowenstein  v.  Mcintosh,  37  Barb.  251;  Smith  v.  Sweeney,  35 
N.  Y.  291. 

24  Jones  V.  Bailey,  5  Cal.  .345;  Buchanan  v.  CunT.  19  .lohns.  137; 
10  Am.  Dec.  200;  Eastman  v.  Burleigh,  2  N.  H.  384;  9  Am.  Dec.  92; 
Southard  v.  Steele,  3  T.  B.  Mon.  435;  Steiglitz  v.  Eg.ginton,  Holt, 
141;  Stead  v.  Salt,  3  Bing.  101;  Adams  v.  Bankart,  1  Cromp..  M.  &  R. 
681;  Karthaus  v.  Ferrer.  1  Pet.  222;  Buchoz  v.  Grandjean,  1  Mich. 
.367:  Backus  v.  Coyne,  35  id.  5;  Harrington  v.  Higlfam,  13  Barb.  6(!0; 
Onion  v.  Robinson,  15  Vt.  510;  Martin  v.  Tlirasher,  40  id.  460. 

sr*  Jones  V.  Bailey,  5  Cal.  .345;  Karthaus  v.  Ferrer,  1  Pet.  222;  Wood 
V.  Sheplierd.  2  Patt.  &  H.  (Va.)  442. 

26  Eastman  v.  Burleigh.  2  N.  H.  485;  Smith  v.  Smith,  4  Rand.  95; 
Boyd's  Heirs  v.  McGruder's  Heirs,  2  Rob.  TVa.)  761.  See  this  sub- 
ject discussed  at  length  in  note  to  Hutchins  v.  Johnson,  30  Am. 
Dec.  620. 


443  AWARDS.  §§  651-653 

§  651.  Election  of  remedy.  Where  the  submission  is  by -bond, 
the  plaintiff  has  his  election  to  sua  on  the  bond  or  on  the  award, 
if  it  is  merely  for  the  payment  of  money;  but  if  a  collateral 
thing  is  awarded,  the  suit  must  be  on  the  bond,  as  debt  will 
lie  for  money  only-^^  ^Yhere  a  sum  of  money  is  awarded,  it  is 
sufficient  to  set  forth  only  so  much  of  the  award  as  to  show  a 
good  cause  of  action.^**  It  seems  that  a  clause  in  a  contract  pro- 
viding that  in  case  any  dispute  should  arise  in  regard  to  the  same 
it  should  be  settled  by  arbitrators,  is  no  bar  to  an  action  upon 
the  contract.^ 

§  652.  Judgment  upon  award.  Judgment  may  be  entered  on 
an  award  without  an  order  of  the  court.^*^  But  the  award  shall 
be  in  writing,  signed  by  the  arbitrators,  or  a  majority  of  them, 
and  be  delivered  to  the  parties.^^  Tlie  court  will  not  disturb 
the  award  unless  the  error  complained  of,  whether  of  law  or  of 
fact,  appear  upon  the  face  of  the  award.^^  If  a  judgment  on 
an  award  of  arbitrators  is  entered  by  the  clerk,  at  the  request 
of  the  party  in  whose  favor  it  is  rendered,  within  less  than  five 
days  after  the  award  is  filed,  and  without  notice  to  the  other 
party,  the  prevailing  party  can  not  afterwards  question  its  valid- 
ity on  the  ground  that  it  was  irregularly  entered.^^ 

§  653.  Jurisdiction.  Where  the  court  has  no  jurisdiction  of 
a  subject-matter,  the  arbitrators  can  have  none.^^  And  the 
award  being  void,  the  release  of  the  action  by  one  of  the  parties 
is  also  void,  if  filed  in  pursuance  of  the  submission.^'^  A  court 
of  equity  may  decree  specific  performance  of  an  award.^^    This 

27  llodsden  v.  Ilarridge,  2  Saund.  02. 

28  1  Ld.  Raym.  ll.^>. 

29  Binsee  v.  Paipe,  .38  N.  Y.  87;  97  Am.  Dec.  774. 

socarsloy  v.  Lindsay,  14  Cal.  .300.  A  judRmont  entered  upon  an 
award  not  supported  by  a  valid  statutoiy  afrreement  of  submission 
to  arbitration  is  a])solntoly  void.     Matter  of  Kreiss,  90  Cal.  017. 

31  Ca'..  Code,  §  1280. 

32  Tyson  v.  Wells.  2  Oal.  122;  overruled  as  to  the  report  of  a 
referee,  in  Cappe  v.  Brizzolara,  19  id.  mi.  An  award  which  appears 
to  determine  all  mattei-s  submitted  to  arbitration,  and  which  shows 
uiK)n  its  fare  that  no  further  inquiry  is  necessaiy  to  ascertain  the 
Slim  of  nionpy  to  be  i)aid  or  any  act  to  be  done  by  either  party 
in  relation  to  Ihe  matters  submitted,  is  sufficiently  complete.  Ful- 
more  v.  M(r;eort,'e.  91   Cal.  Oil. 

33  iToofTH  V.   :\Iorse.  m   Cal.   128. 

34  Williams  v.  Walton,  9  Cal.  142. 
WMnldrow  v.  Norris.  12  Cal.  .331. 
36  Whitney  v.  Stono.  2.3  Cal.  275. 


§^  OJ-i.  Obi)  I'Oii.Ms  or  t'o.Mi'i.AiJs'Ts.  444: 

does  not  apply  to  real  estate,  as  uo  arbitration  or  award  can  be 
made  atVeeting  the  title  to  real  property  in  California.'*^  Where 
a  party  receives  the  amount  oi'  a  judgment  under  an  award,  it  is 
a  waiver  on  his  part  of  all  errors  and  misconduct  on  the  part  of 
the  arbitrators.^*  But  a  submission  to  arbitration  of  title  to 
real  estate,  being  prohibited  by  statute,  is  not  merely  voidable, 
but  is  void  and  incapable  of  ratilication.^'-*  But,  where,  under 
an  agreement  in  writing,  parties  submit  matters  of  difference 
relative  to  the  partition  of  lands  to  the  award  of  arbitrators, 
and  an  award  is  made  thereunder,  a  specific  performance  of  the 
award  will  be  decreed.'*"  So  in  New  York  as  to  disputed 
boundaries,'*^  and  in  Ohio.'*- 

§  654.  Meeting  of  arbitrators.  Where  there  are  three  arbi- 
trators all  shall  meet,  but  two  of  them  may  do  any  act  which 
might  be  done  by  all.*^  The  arbitrator  must  make  his  award 
within  the  time  limited  in  the  agreement.^'*  An  allegation  that 
an  award  was  made,  imports  that  it  was  ready  to  be  delivered.'"' 
They  may  select  an  umpire  either  before  or  after  investigation, 
and  may  award  costs.^^  But  after  an  award  has  been  once 
made  and  delivered,  they  can  not  amend  the  same  without  con- 
sent of  the  parties.^"  They  shall  be  sworn,  and  a  majority 
may  determine  any  question.^^  Arbitrators  have  no  common- 
law  powers  when  appointed  in  the  mode  provided  by  statute.''^ 

§  655.  Publication.  The  arbitrator  can  not  "  award  "  with- 
out "  publishing  "  his  award,  and  "  publishing  "  is  a  technical 
phrase,  merely  implying  that  the  arbitrator  has  finally  disposed 

3T  Spencer  v.  Winselman,  42  Cal.  479.  So  in  Utah.  But  a  dis- 
pute as  to  the  existence  of  any  fact  that  mifiht  determine  the  rights 
of  the  parties  to  the  land,  without  trying  the  legal  title,  may  be 
submitte<l  to  arbitration.    Thygerson  v.  Whitbeck,  5  Utah,  406. 

38  Hoogs  V.  jNIorse,  ,31  Cal.  128. 

39  Wiles  V.  Peck,  20  N.  Y.  42. 

40  Whitney  v.  Stone,  23  Cal.  275. 

41  Stout  V.  Woodward,  5  Hun,  340. 

42  Hunt  v.  Guilford,  4  Ohio,  310. 

43  Cal.  Cwle.  §  128.^,;  Glass  Pendery  Min.  Co.  v.  Meyer  Mln.  Co., 
1  West  Coast  Rep.  290. 

44  Ryan  V.  Dougherty.  30  Cal.  218. 

45  Munroe  v.  Allaire,  2  Cai.  320. 
40  Dudley  v.  Thomas,  23  Cal.  3G5. 
47  Id. 

4s  C.Tl.  Code,  §  12S,'S. 

49  Williams  v.  Walton,  9  Cal.  145. 


■44:5 


AWAKDS.  §§  656-658 


of  the  case.^'^  And  when  published,  any  alteration  whatever, 
without  consent  of  the  parties,  will  vitiate  it."^  Notice  of  the 
award  need  not  be  averred,  unless  required  by  the  terms  of  the 
submission.^-  Xo  demand  need  be  alleged  unless  expressly  re- 
quired.^^ 

§  656.  Bevocation.  An  agreement  to  submit  a  matter  to  com- 
mon-law arbitration  is,  both  at  law  and  in  equity,  revocable  be- 
fore the  award  is  given,^^  and  it  can  not  be  made  irrevocable 
by  any  agreement  of  the  parties.^^  Otherwise,  it  seems,  of  a 
submission  by  rule  of  court.'^*^  After  the  arbitrators  have  been 
sworn,  neither  of  the  parties  has  the  right  to  revoke  the  sub- 
mission.'^^ 

§  657.  Submission.  To  constitute  a  submission  to  arbitration 
under  the  statute,  so  as  to  give  the  award  the  effect  of  a  judg- 
ment, the  statute  must  be  pursued  in  the  manner  in  which  the 
submission  is  filed  with  the  clerk f^  and  the  clerk  may  enter 
judgment  on  the  award  in  due  time,  without  any  order  of  the 
court.^^  And  by  the  statutes  of  California,  the  submission  to 
arbitration  shall  be  in  writing,  and  may  be  to  one  or  more  per- 
sons.^*^ 

§  658.  Vacation  of  award.  The  court  may,  on  motion,  va- 
cate an  award:  1.  Where  it  was  procured  by  fraud  or  corrup- 
tion; 2.  Where  the  arbitrators  were  guilty  of  misconduct;  3. 
WTiere  the  arbitrators  exceeded  their  powers.^^  Or  it  may 
modify  or  correct  an  award:     1.  Where  there  is  a  miscalcula- 

60  Brooke  v.  Mitchell.  6  M.  &  W.  47.S. 

Ri  rortor  v.  Scott,  7  Gal.  312;  Dudley  v.  Thomas,  2.S  id.  365. 

62Hodsden  v.  Harridpe,  2  Raimd.  02;  6  M.  &  W.  474. 

83  Rowe  V.  YounR,  2  Brod.  &  B.  233. 

MS  Co.  R.  81;  Milne  v.  Gratrix,  7  Ea.st,  G07;  Clapham  v.  Hlgham,  1 
Bin?.  89;  Kins  v.  Joseph,  5  Taunt.  4.^2. 

65  Tobey  v.  The  County  of  Bristol.  3  Stoi-y  C.  C.  800. 

ccMa.sterson  v.  Kidwell,  2  Cranch  C.  C.  GG9. 

6"Commissionors  Montgomery  Coimty  v.  Casey,  1  Ohio  St.  403; 
Pellock  V.  Hall.  4  Dall.  222;  Haskell  v.  Whitney,  12  Mass.  47.  See, 
as  to  revocation,  Church  v.  Shanklin,  (\r>  CjU.  020;  Academy  of 
Sciences  v.  Fletcher,  99  id.  207. 

f.R  ITeslep  T.  San  Francisco.  4  Cal.  1 ;  Carsley  v.  Lindsay,  14  Id, 
390. 

60  See,  also,  Ryan  v.  Doupherty,  .30  Cal.  218. 

«oral.  Cwle  Civ.  Pro.,  §  1282. 

«i  Td..  §  12S7:  :srorrls.  etc..  Co.  v.  Salt  Co..  58  N.  Y.  607;  Stockton, 
etc.,  Agr.  "Works  v.  Glens  Falls  Ins.  Co.,  98  Cal.  557. 


§  059  rOKMS    Ol'    COMl'LAINTS.  44:0 

tiuu  iu  ligures;-2.  ^VlR'n  part  of  the  award  is  on  matters  uot 
subniilted;  3.  When,  il  it  had  been  the  verdict  ol;  a  jury,  it 
coukl  have  been  amended,  or  the  imperfection  disregarded.^^^ 
As,  wliere  the  object  of  "the  submission  is  to  make  an  end  of 
litigation,  and  the  award  is  uncertain  and  incomplete  upon  its 
face,  it  defeats  the  object  of  the  submission  and  must  be  set 
aside/'^  Where  an  award  is  objected  to  on  the  ground  that  it 
embraces  matters  not  in  fact  submitted,  it  lies  with  the  obj ceil- 
ing party  to  show  affirmatively  in  what  the  arbitrators  have 
exceeded  their  duty.*^  An  award  may  be  good  in  part  and  bad 
in  part.^' 

§  659,  Valid  awards.  The  rule  is  that  arbitrators  must  pass 
upon  all  matters  submitted;^^  and  an  award  which  clearly  goes 
beyond  the  issues  submitted  is  invalid  as  a  whole,  where  the 
matter  ultra  I'ircs  can  not  be  separated  without  violating  the 
intent  of  the  parties.*^^  It  seems  that  in  New  York,  "  that  an 
arbitrator  made  an  award"  means  a  qualified  arbitrator,  and 
sufficiently  imports  that  he  was  duly  sworn,  where  an  oath  is 
required.^^  An  award  rendered  upon  fair  arbitration,  and  for 
a  long  time  concurred  in,  must  be  held  to  be  conclusive.^^  No 
a\vard  implies  no  valid  awardJ"  An  award  settles  forever  all 
matters  fairly  within  the  meaning  and  intention  of  the  submis- 
sion.'^^ An  award  bad  in  part  may  be  enforced  for  the  part 
that  is  good,  if  not  attacked  for  fraud,  and  the  matter  is  di- 
visible.'^^  i\  yn^^gt  be  certain  and  decisive  as  to  the  matters 
submitted,  and  thus  avoid  all  further  litigation.'^*  Unless  it 
is  final  and  conclusive  as  to  the  matters  submitted,  it  is  not  ad- 
missible in  evidence."^-*    In  California,  the  rule  that  statutory 

62Cal.  Code  Civ.  Pro..  §  12aS. 

63  Pierson  v.  Nonnan,  2  Cnl.  .')90;  .Tacob  v.  Ketclmm,  37  id.  197. 

64  Blair  v.  Wallare.  21  Cal.  317. 

65  Williams  v.  Walton,  9  Cal.  140;  13  .Tohns.  364. 
66Muldrow  V.  Norris.  12  Cal.  331;  Porter  v.  Scott,  7  id.  312. 

67  White  v.  Arthur,  HO  Cal.  33. 

68  Browning;  v.  Wheeler,  24  Wend.  258;  3.5  Am.  Dec.  617. 

69  .Tarvis  v.  Fountaain  Water  Co.,  5  Cal.  179;  Fulmore  v.  McGeorjje, 
91  id.  Gil;  Robinson  v.  Templar  Lodge,  97  id.  62;  Wilson  v.  Wilson, 
18  Col.  61.5. 

70  Dressier  v.  Stansfiold.  14  M.  Sz  W.  822. 

71  Brazill  v.  Isham.  12  N.  Y.  15;  Lowensteln  v.  Mcintosh.  37  Barb. 
2.51. 

72Miildrow  T.  Norris,  2  Cal.  74;  56  Am.  Dec.  313. 
T".  .Tafob  v.  Ketchum,  37  Cal.  197. 
74  Id. 


447  AWARDS.  §  600 

proceedings  in  cases  of  arbitration,  being  in  derogation  of  the 
common  law,  must  be  strictly  construed,  has  been  abrogated  by 
the  Code,  and  it  is  sufficient  if  there  is  a  substantial  compliance 
with  the  requirements  of  the  statute.  And  if  an  award,  though 
not  good  under  the  statute,  is  valid  as  a  common-law  award,  a 
motion  to  set  it  aside  is  properly  denied.'^^  But  a  submission 
of  disputed  matters  to  arbitration,  under  an  agreement  of  sub- 
mission which  clearly  shows  an  intention  by  the  parties  thereto 
to  ignore  nearly  all  of  the  material  provisions  of  the  statute 
relating  to  arbitrations,  and  which  expressly  repudiates  any  in- 
tention of  following  its  requirements,  or  of  availing  themselves 
of  the  machinery  of  the  court  to  assist  the  arbitrators,  or  cor- 
rect any  errors  of  the  latter,  is  void  as  a  statutory  submission 
to  arbitration,  and  an  award  thereon  can  not  be  enforced  as  a 
judgment,  although  it  may  be  good  as  a  common-law  award  and 
as  the  basis  of  an  action.'^^  In  the  absence  of  statute,  an  award 
may  be  set  aside  for  fraud,  accident,  or  mistake,  but  it  must 
be  for  fraud  practiced  upon  the  arbitrators,  or  for  some  accident 
or  mistake  by  which  they  were  deceived  or  misled."'^  And  a 
party  who  with  knowledge  of  all  the  material  facts  complies 
with  the  requirements  of  an  award,  or  accepts  the  benefits 
thereof,  is  precluded  from  demanding  that  it  be  set  aside."^*  An 
award  will  not  be  set  aside  upon  the  ground  that  the  arbitrators 
consulted  with  a  person  not  an  arbitrator,  if  it  appears  that 
they  acted  on  their  own  judgment  in  making  their  determina- 
tion.'® But  an  award  made,  not  on  their  own  judgment,  but 
solely  at  the  direction  of  one  of  the  paFties,  Is  invalid."^ 

I   660.   On  an  award  of  an  umpire. 
Form  No.   151. 

[TiTLE.l 

The  plaintiff  complains,  and  alleges: 

I.   [Allegation  as  in  preceding  form.] 

IT.  That  said  A.  B.,  before  they  proceeded  upon  the  said  ar- 
bitration, on  the day  of ,  18.  .,  by  writ- 
ing under  their  hands,  appointed  one  E.  F.  to  be  umpire  in  the 

7B  Matter  of  Krels.  00  Oal.  017. 

77  WiLson  V.  Wilson.  IH  Col.  015. 

7«Id.:  Goflfroy  v.  Knodlo,  44  111.  App.  O.'W:  Terry  v.  Mooro,  22 
N.  Y.  Supp.  7S.^»;  .Tohnson  v.  Cochran.  81  Ca.  39;  12  Am.  St.  Rep. 
294;  see  Srhool  Dlstriet  v.  Sa^e,  13  Wash.  St.  352. 

7B  Simons  V.  Mlll.s,  80  Cal.  118. 

POTTartford  v.  Waterhouse.  44  Fed.  Rep.  151. 


§§  001-004  KOK.MS    OF    COMPLAINTS.  448 

matter  so  submitted;  and  the  said  arbitrators,  after  hearing  the 
phiintilf  and  deiendant,  and  not  being  agreed  concerning 
the  matters  submitted  to  them,  the  said  E.  F.  afterwards  under- 
took said  arbitration,  and  heard  the  plain! ilT  and  defendant, 
and  on  the day  of ,  18..,  the  said  arbi- 
trators made  their  award,  in  writing,  that  tlie  defendant  should 

[pay  the  plaintitl"   dollars] . 

111.  That  he  has  not  paid  the  same.**^ 

[Demand  of  Judgment.] 

§  661.  Allegation  of  an  enlargement  of  the  time. 

Form  No.   152. 

[Title.] 
That  on  the day  of ?  18 .  . ,  the  plain- 
tiff and  defendant,  by  agreement  [in  writing,  of  which  a  copy 
is  hereto  annexed],  extended  the  time  for  making  the  award 
until  the day  of ,  18.  . 

§  662.  Date  of  award.  An  award  may  be  counted  on  as  made 
at  the  time  of  its  date,  not  at  the  time  as  extended  by  erasure 
or  interlineation.^^ 

§  663.  Appointment.  An  umpire  may  be  appointed  by  parol, 
unless  the  submission  require  the  appointment  to  be  in  writing.^^ 
Where  an  umpire  has  been  appointed  and  has  entered  on  the 
performance  of  his  duty,  the  authority  to  decide  is  vested  solely 
in  him;  the  original  powers  of  the  arbitrators  cease  to  exist.®* 

S  664.  Power  to  award.  But  where  two  arbitrators,  unable 
to  agree,  appoint  under  the  submission  a  third  arbitrator,  the 
power  to  make  an  award  is  vested  in  the  three  Jointly.  Wher- 
ever, therefore,  the  action  is  founded  on  an  award,  its  true 
character,  as  the  act  of  an  umpire  or  of  arbitrators,  must  be  c^t 
forth  in  the  complaint,  in  order  that  a  defense  adapted  to  its 
true  character  may  be  set  up  in  the  answer.^-'' 

81  The  nbove  form  of  complaint  does  not  apply  under  the  prac- 
tice in  California.  Tbo  roport  of  a.  referee  and  the  awrd  of  an 
arbitrator  are  in  all  essentials  tlie  same.  Grayson  v.  Guild,  4  Cal. 
122. 

P2Tompldns  v.   Torwin,  0  Pow.  25.^. 

S3  Elmenflorf  v.  TTnrris.  .5  Wend.  516. 

84  T'nderliill  v.  Van  Cortlandt,  2  .Tohns.  Th.  ,S.^0:  "Rntler  v.  Mayor  of 
New  York,  1  Hill,  489;  Mayor  of  New  York  v.  Butler,  1  Barb.  325. 

R5  Lyon  V.  Blossom,  4  Dupr.  .^1S.  An  action  can  not  be  maintained 
upon  an  oriirinal  r-anse  of  notion  submitted  to  nrbitration,  where  the 
plaintiff  rotains  the  fruits  of  tlie  award.  Orvis  v.  Wells-Fargo  Co., 
7.3  Fed.  Bop.  110. 


CHAPTER  III. 

ox    EXPEESS    PROMISES, 

§  665.  On     an  express  promise  in  consideration  of  a  precedent 
debt. 

For)ii  No.   153. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    . . . ,   18..,  at 

,  the  defendant  was  then  indebted  to  the  plaintiff  in 

the  sum  of  dollars,  for  [state  what].  In  con- 
sideration thereof,  he  then  promised  to  pay  to  the  plaintiff  the 
said  sum,  on  the day  of 

II.  That  he  has  not  paid  the  same  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  666.  Consideration.  In  every  action  upon  a  promise  to 
pay,  a  consideration  must  be  stated.^  Such  a  consideration  is 
an  essential  fact  to  be  proved,  and  unless  proved  the  plaintiff 
can  not  recover.^  In  an  action  upon  a  promise  to  pay  money, 
if  the  complaint  contains  no  averment  of  consideration,  or  of  in- 
debtedness, except  by  way  of  recital,  it  is  insufficient.^ 

§  667.  Consideration,  in  purchase  of  land.  Defendant,  upon 
the  purchase  of  certain  land  from  B.,  agreed  in  writing,  as  part 
of  the  consideration,  to  pay  to  plaintiff  a  debt  due  to  him  by 
B.  Plaintiff  aftenvards  assented,  and  verbally  agreed  to  look 
to  defendant  for  the  debt.  This  was  not  within  the  Statute  of 
Frauds,  and  plaintiff  may  recover  the  debt  from  defendant.^  A 
promise  or  agreement  to  convey  lands  in  consideration  of  the 

1  Railey  v.  Frfcinan,  4  .Tolms.  2S0;  Aclioson  v.  Telegraph  Co.,  96 
Cal.  CA\. 

2  nyle  V.  Soenbar,  23  Cal.  5,38. 

3  Rliafer  v.  Rear  River  &  Auliurn  Water  &  M.  Co.,  4  Cal.  295. 
Where  a  consideration  is  not  implied,  or  a  request  Is  essential  to  the 
defendant's  liability,  It  must  1)6  si»eeially  aveiTed  in  pleading. 
Spear  v.  Downing:.  12  Abb.  Pr.  4?,";  Abb.  Sel.  Cas.  5,3. 

4  McLaren  v.  TTntehlnson,  22  Cal,  187;  83  Am,  Dec.  59, 

Vol.  1—57 


§§  (.)(.)8-G71  I'OUMS   OF   COMPLAINTS.  460 

purcliasor's  i»aving  for  them  out  of  the  j)ro(Us  is  void,  as  having 
no  eonsitleration.^  A  promise  made  under  mistake,  as  to  lia- 
bility, is  void.** 

§  668.  Consideration  —  married  woman.  The  advance  of 
money  to  the  son  of  a  married  woman  is  not  a  sufficient  consider- 
ation for  her  suhsequent  promise  to  repay .'^ 

§  669.  Consideration  to  tliird  person.  An  action  can  be 
maintained  upon  a  promise  made  by  the  defendant,  upon  a 
valid  consideration  to  a  third  person  for  the  benefit  of  the 
plaintilf,  although  the  latter  was  not  privy  to  the  consideration. 
And  a  creditor  can  maintain  an  action  against  a  person  who 
had  received  money  from  his  debtor  upon  a  promise  to  pay  the 
amount  to  the  creditor.^  Where  A.,  who  is  indebted  to  B., 
promises  in  consideration  of  his  release  by  B.  to  pay  the  amount 
to  C,  who  is  a  party  to  the  arrangement,  it  is  a  sufficient  con- 
sideration to  support  such  promise.^ 

§  670.   Upon  compromise  of  an  action. 

Forvi  No.   154. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18 .  . ,  an  action  was 

pending  in  the court,  brought  by  the  plaintiff  to 

recover  from  the  defendant  the  sum  of  dollars, 

for  goods  sold  by  plaintiff  to  the  defendant. 

II.  That  on  the day  of ,  18.  .,  at ., 

in  consideration  that  the  plaintiff  would  discontinue  said  action, 

and  would  accept  dollars  in  satisfaction  of  his 

claim,  the  defendant  promised  to  pay  the  plaintiff  the  sura  of 
dollars. 

III.  That  the  defendant  accordingly  discontinued  said  action. 

IV.  That  no  part  of  said  sum  has  been  paid. 

[Demand  of  Judgment.] 

§  671.  Essential  allegations.     An  agreement  to  compromise, 
not  unconscientious  or  unreasonable,  must  be  executed,  with- 

r.  Dorsey  v.  Paokwood,  12  ITow.  (IT.  S.)  126. 
fi  Offutt  V.  Parrott,  1  Cranch  G.  C.  154. 
"Watson  V.  Dunlap,  2  Cranch  C.  O.  14. 

^  Secor  V.  Lord,  3  Keyes,  525;  see  Hecht  v.  Caugliron,  46  Ark.  132; 
Davis  V.  Clinton  Water  Works,  .54  Iowa,  59;  37  Am.  Rep.  185. 
8  Barringer  v.  Warden,  12  Cal.  311. 


451  EXPRESS   PROMISES.  §§  673-674 

out  regard  to  the  merits  of  the  dispute.^'^  A  complaint  on  a 
promise  in  consideration  of  a  compromise  should  show  that 
there  was  some  shadow  of  a  claim;  ^^  though  it  need  not  show 
that  the  plaintiff  had  a  valid  claim. ^^  It  must  also  aver  that  the 
litigation  was  discontinued  according  to  the  compromise. ^^ 

§  672.  Covenant  to  sue.  A  covenant  not  to  sue  for  five  years 
is  no  bar  to  the  action;  but  the  defendant  must  rely  upon  the 
covenant  for  his  remedy.^'*  A  covenant  not  to  sue,  made  to 
a  portion  only  of  Joint  debtors,  does  not  release  any  of  them.^^ 

§  673.   Promise  of  a  third  person  to  pay  money  to  plaintiff. 

Form  No.   135. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18 . . ,  one  A.  B.  was 

and  ever  since  has  been,  indebted  to  the  plaintiff  in  the  sum 
of dollars. 

II.  That  on  that  day,  the  said  A.  B.  was  the  holder  of  a  bill 
of  exchange  [describe  it],  then  indorsed,  and  delivered  the  same 
to  the  defendant;  in  consideration  of  \vhich  the  defendant  then 
and  there  promised  A.  B.  that  he  would  endeavor  to  collect  the 
same,  and  that  when  collected,  he  would  apply  the  proceeds  in 
payment  of  said  indebtedness  of  said  A.  B.  to  the  plaintiff. 

III.  That  afterwards,  on  the day  of , 

18.  .,  the  defendant  collected  and  received  the  same. 

IV.  That  no  part  thereof  has  been  paid  to  the  plaintiff. 

[Demand  of  Judgment.]  ^® 

§  674.  Essential  allegations.  In  an  action  for  a  breach  of 
an  engagement  to  pay  money  to  A.  for  the  benefit  of  B.,  it  is 
not  necessary  to  aver  that  tlie  defendant  had  refused  to  pay  to 

lOSarpent  v.  Larned.  2  Curtis.  .340. 

11  Dolcher  v.  Fry,  37  Bnrb.  ir>2. 

12  Palmer  v.  North,  ?i~>  Rarh.  282;  see  Dunham  v.  (Jri.<?wokh  100 
\.  y.  224;  Bellows  v.  Sowles,  .^).5  Vt.  .391;  47}  Am.  Hep.  G21. 

i"?  Dolfher  v.  Fry,  .37  Barb.  152. 

H  Howland  v.  Marvin,  .5  Cal.  .")01. 

I'-Maltluy  V.  rially.  4  Cal.  r,2;  (V)  Am.  Drc.  r,m. 

i'''Tiiis  form  is  sui)i)f)r1e(l  by  Delaware  &  Hudson  C;inal  Co.  v. 
Wcstflifstpr  Cfniiily  I'.aiik,  4  Den.  1>7.  We  have,  liowcvcr,  chanRod 
it  by  addiu^^  to  and  .s(rll\in>x  <>ii1  jxulions.  Money  received  by  a 
tliinl  [lersnn.  on  imtmise  to  ))!iy  creditor's  debt,  may  he  recovered. 
Coddiii-d  V.  Mock  bee.  ."  ("riincli  C.  C.  <»(»<»;  see  §  0(>9,  ante. 


§§  675-677  FORMS  of  complaints.  452 

B.,  as  well  as  to  the  plaiiitilV.'^  lUit  on  a  prmniso  to  })a.y  money 
when  collected,  collection  is  a  condition  precedent,  and  must 
be  averred. ^^ 

§  675.  Vendor  of  lands.  Jn  a  case  in  Calitornia,  defendant, 
upon  the  purchase  of  certain  laiul  from  B.,  agreed  with  him 
in  writing,  as  part  of  the  consideration,  to  pay  to  plaintilf  a  deht 
then  due  the  latter  from  J).  Plaintilf  afterwards  assented  to 
the  arrangement,  and  veii)ally  agreed  with  t.he  defendant  to 
look  to  him  for  his  debt,  and  release  Ji.  It  was  held,  that  this 
agreement  was  not  within  the  Statute  of  Frauds,  and  gave  plain- 
tiff a  right  of  action  against  defendant  for  the  debt.^^ 

§  676.  When  action  lies.  AssiiDipsit  is  the  proper  form  of 
an  action  against  a  guarantor  by  one  who  has  given  credit  on 
the  faith  of  a  general  promise  to  be  security.  The  creditor  is 
not  confined  to  an  action  of  deceit.^  When  A.,  by  agreement 
between  him  and  B.,  assented  to  by  C,  becomes  liable  to  pay 
the  latter  a  debt  originally  due  to  him  from  B.,  the  assignee 
of  C.  may  maintain  an  action  for  the  debt  in  his  own  name 
against  A.^^  Defendant  being  indebted  to  E.  M.  &  Co.,  and 
they  to  plaintiff,  all  parties  agreed  that  defendant  should  pay 
the  amount  of  his  indebtedness  to  the  company  to  plaintiff. 
This  was  an  equitable  assignment,  and  the  only  mode  of  en- 
forcing it  is  by  action  in  the  name  of  the  assignee  to  recover  the 
debt.22 

§  677.   On   a    promise   to    pay    for   the  surrender    of    a   lease. 

Form  No.   156. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  hereinafter  mentioned,  the  plaintiff  leased 
from  the  defendant  a  house  and  lot  in  the  town  of , 

17  Rowland  v.  Phalen,  1  Bosw.  43. 

iSDodRe  V.  Coddinslon,  3  .Tolins.  14fi. 

i!>  McLaren  v.  Hutoliinson,  22  Cal.  188;  8.3  Am.  Dec.  .'S9.  Whether 
the  assont  was  necessai"y  to  fix  defendant's  liability,  see  Lewis  v. 
Covillarid,  21  Cal.  178. 

20  Lawrason  v.  Mason,  3  Cranch,  492.  Complaint  on  a  guaranty. 
See  Hernandez  v.  Stilwell,  7  Daly,  360;  Cordier  v.  Thompson,  8 
id.  172. 

21  Lewis  V.  Covillaud,  21  Cal.  178;  McLaren  v.  Hutcliinson,  22  Id. 
187;  83  Am.  Deo.  .^)n. 

22  WifrpiDS  V.  McDonald,  18  Cal.  126. 


453  EXPKESS  PROMISES.  §§  678-G80 

for  a  term  commencing  on  the clay  of , 

18 .  . ,  and  ending  on  the day  of ,  18 .  . , 

under  which  he  was  entitled  to  the  possession  of  said  house  and 
lot. 

II.  That  on  the  . . ; day  of  ,  18.  .,  the 

defendant  promised  the  plaintiff  that  in  consideration  that  he, 
the  plaintiff*,  would  surrender  to  the  defendant  the  unexpired 
term  and  the  possession,  he  would  pay  the  plaintiff  the  sum  of 
dollars. 

III.  That  the  plaintiff  thereupon  surrendered  the  unexpired 
term  of  said  lease,  and  the  possession  of  said  land  to  the  de- 
fendant. 

IV.  That  no  part  of  said  sum  has  been  paid. 

[Demand  of  Judgment.] 

§   678.   For  the  purchase  money  of  land  conveyed. 

Form  No.   137. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18..,  at 

,  the  plaintiff  sold  and  conveyed  to  the  defendant 

[the  house  and  lot  No.  203   street,  in  the  city 

of ]. 

II.  That  defendant  promised  to  pay  the  plaintiff 

dollars  for  the  said  [house  and  lot]. 

III.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

I  679.  Consideration  of  deed.  In  New  York  an  action  will 
lie  for  the  consideration  of  a  deed,  although  there  was  no  valid 
contract  under  the  Statute  of  FraudR,^^  even  when  the  deed 
contains  a  receipt  for  the  consideration.^^ 

$  680.  Delivery.  I"^nder  a  verbal  contract  of  sale  of  real 
estate,  the  delivery  of  the  title  rleeds  is  equivalent  to  a  symboli- 
cal delivery  of  and  admissioTi  into  the  possession  of  the  property, 
as  between  vendor  and  vendee.^' 

23  Thomas  v.  Dir-kinson.  12  N.  Y.  .S04. 

24  Shey.lianl  v.  IJttle,  14  Johns.  210;  Thomas  v.  D:cldnson.  12  N. 
Y.  nG4. 

25Tohler  v.  Folsom,  1   C'al.  2<>7.  iiiid  note. 


§§  (;S1-G83  FORMS    01'    COMPLAINTS.  454 

§  G81.  Request  is  implied  by  the  word  "  sold."^'  A  lailuro 
on  lln'  jiarl  ol  the  vendee  lo  [nxy  tlie  purchase  money  i'or  two 
years  anil  more,  does  not  forfeit  his  right  under  the  contruet, 
as  tlie  vendor  may  enforee  the  payment  at  any  time  after  it  is 
due.-" 

§   682.   Allegation  of  new  promise. 

Form   No.   J58. 

That  thereafter,  on  the    day  of ,  18 .  . ,  at 

,  in  consideration  of  the  foregoing  facts  the  de- 
fendant ]iromiped  to  the  plaintiff,  in  writing,  that  he  would  pay 
such  indebtedness. 

§  683.  Statute  of  Limitations  —  new  promise.  It  is  well 
settled  with  reference  to  actions  for  moneys  due  on  contracts, 
that  the  statute  does  not  discharge  the  debt,  or  in  any  way 
extinguish  the  right  or  destroy  the  obligation,  but  only  takes 
away  a  remedy.  The  debt  remains  unsatisfied  and  unextin- 
guished. It  is  a  sufficient  consideration  to  support  a  new 
promise.^^  In  some  of  the  states,  where  there  is  a  new  promise 
to  pay  a  continuing  debt,  although  the  creditor  may  sue  on  the 
old  debt  and  give  the  new  promise  in  evidence,  he  may,  on  the 
other  hand,  sue  on  the  new  promise.-^  Where  a  debtor  promises 
to  pay  when  able,  and  the  creditor  does  not  wait,  but  proceeds 
immediately  on  the  original  obligation  before  defendant  is  able 
to  pay,  he  can  not  afterwards  resort  to  an  action  of  assumpsit 
on  the  new  promise.  In  Iowa  the  new  promise  must  be  alleged.^" 
And  in  Missouri,  under  the  statute  of  1845,  and  in  the  revision 
of  1855,  the  promise  or  acknowledgment  must  be  in  writing, 
or  it  is  of  no  effect. ^^  In  Ohio  the  rule  seems  to  be  that  where 
a  new  promise  or  acknowledgment  has  been  made,  the  plaintiff 
may  state  the  demand  barred,  as  a  consideration  of  the  new 

20  1  Paund.  2fi4.  note  1;  Oomstoek  v.  Smith,  7  .Johns.  87;  Parker 
V.  Crane,  fi  Wend.  647. 

2T  Gouldin  v.  Buokelew,  4  Cal.  107. 

28Townsend  v.  Jemison.  0  How.  (TT.  S.)  41.*?;  Bulfjer  v.  Roche,  11 
Pick.  37:  22  Am.  Dec.  .".."0;  TJncoln  v.  Battelle.  G  Wend.  4S5;  Ang:.  on 
TJm.,  p.  2G.S.  §  21.3;  Oliahot  v.  Tucker,  .30  Cal.  434;  Grant  v.  Burr, 
TA  id.  2f).S:  Shaw  v.  Silloway,  14.5  Mass.  .503:  .Tordan  v.  .Jordan.  S5 
Tenn.  .501:  Ferjruson  v.  Harris,  .39  S.  C.  323;  39  Am.  St.  Rep.  731; 
Marsliall  v.  Hnlmps.  RS  Wis.  .55.5. 

20  Lonsdale  v.  Brown,  4  Wash.  C.  C.  148. 

30  Td. 

31  Blackburn  v.  .Jarkson,  2G  Mo.  308. 


455  EXPRESS    PROMISES.  §  G83 

promise,  and  allege  the  new  promise  in  writing  as  the  cause 
of  action.^"  By  the  practice  in  New  York  the  complaint  may 
be  made  on  the  original  demand,  and  if  the  Statute  of  Limita- 
tions be  pleaded,  the  new  promise  may  be  given  in  evidence 
without  an  allegation.^"*  And  the  same  rule  applies  after  a 
discharge  in  bankruptcy  or  insolvency.^^ 

When  a  promise  to  pay  a  debt  is  relied  on  to  take  a  case  out 
of  the  Statute  of  Limitations,  it  is  not  necessary,  in  pleading, 
to  allege  that  it  was  in  writing,  signed  by  the  party .^^  It  is 
otherwise  in  California.^^  In  that  state  it  is  held  that  where 
the  acknowledgment  is  made  while  the  contract  is  a  subsisting 
liability;  that  is,  before  it  has  become  banned  by  the  statute, 
it  establishes  a  continuing  contract;  but  when  made  after  the 
bar  of  tbe  statute,  a  new  contract  is  created.  It  is  not  held  that 
the  statute  raises  a  presumption  of  payment,  but  bars  the  remedy. 
That,  therefore,  when  the  creditor  sues  after  the  statute  has 
barred  the  original  contract,  his  cause  of  action  is  not  upon 
the  original  contract,  but  upon  the  new  promise,  whether  it  be 
in  form  a  new  promise,  or  an  implied  promise  arising  from 
the  acknowledgment;  the  consideration  being  the  original  con- 
tract, which,  though  barred  liy  the  statute,  is  binding  in  foro 
conscicntiaeP  That  the  statute  acts  only  on  the  remedy,  and 
does  not  raise  a  presumption  of  payment.^^  In  New  York  it  has 
been  held  that  where  there  is  a  new  promise  to  pay  a  debt  l)arred 
by  the  Statute  of  Limitations,  it  is  not  necessary  to  count  upon 
this  as  a  new  contract:  but  the  action  may  be  brought  npon 
the  original  obligation.^''     The  time  of  such  new  promise  must 

32  Rtiirfres  v.  Biu-ton.  8  Ohio  St.  215. 

S3  Kssolstyn  v.  Weeks,  12  N.  Y.  035;  Clark  v.  Atkinson.  2  E.  D. 
Smith,  112:  see,  also.  Polk  v.  Buttertiekl.  9  Col.  325;  Fox  v.  Tay, 
89  Cal.  ^.''.O:  23  Am.  St.  Rep.  474. 

34  Shippoy  V.  Henderson,  14  .Johns.  178;  7  Am.  Dec.  458;  Depuy 
V.  Swai-t,  3  Wond.  1.35;  20  Am.  Dee.  r.73. 

3!5Lynfh  v.  :Musfrrav('.  Ilayos  t<L'  .T.  821. 

30  Porter  v.  Elam.  25  Cal.  291;  85  Am.  Doo.  132. 

37  MfCormick  v.  Brown,  .30  Cal.  ISO;  95  Am.  Doo.  170;  Chahot  v. 
Tucker,  39  Cal.  4.38;  seo,  also,  Buldol  v.  Brizzolara,  .'"><")  id.  374;  04 
id.  .3.54;  Anzerais  v.  Naplee,  74  id.  00;  Osment  v.  McElrath,  08  Id. 
400;  .58  Am.  Rep.  17;  Cnienbcrfr  v.  Buhrinp:,  5  Utah,  414;  Howes  v. 
Lyndo,  7  Mont.  .545;  Wilcox  v.  Williams.  5  Nev.  21.3. 

38  Sec  .Johnson  v.  Albany,  etc.,  R.  R.  Co.,  .54  N.  Y.  410:  13  Am. 
Rpp.  007. 

3nv,nn  Alen  v.  T-Yltz,  9  Ai>h.  I'r.  277;  Sands  v.  St.  .Johns,  23  How. 
Pr.  140. 


§§  t)84.  G84a  forms  of  complaixts.  450 

be  delinitoly  averred.  An  averuient  of  ropoatod  acknowlcdg- 
moutd  will  not  sullice."*"  The  acknowledgment  miist  be  a 
direct,  distinct,  unqualified,  and  unconditional  admission  of  the 
debt  which  tlic  pai'ty  is  liable  and  willing  to  pay."*^  When  the 
new  promise  is  coupled  with  a  condition,  it  should  be  so  alleged, 
and  performance  must  be  averred/" 

§  684.  Bequest.  Allegation  that  plaintiff  refused,  etc.,  though 
then  aaid  there  particularly  requested  to  do  so,  is  a  suificiently 
explicit  allegation  of  a  request  to  amount  to  a  positive  aver- 
ment.*^ Where  the  agreement  is  to  pay  on  request  the  debt 
of  another,  if  he  does  not  pay  on  the  day,  a  special  request 
must  be  averred.  The  general  allegation  "  though  often  re- 
quested "  is  not  enough.** 

§  684a.  Promise  made  on  a  contingency.  In  an  action  on  a 
promise  made  on  a  contingency,  it  is  necessary  to  aver  in  the 
complaint  the  occurrence  or  nonoccurrence,  as  the  case  may  be, 
of  the  contingency  upon  which  the  promise  depends.*^  If  the 
complaint  contains  the  necessary  averments  as  to  the  happening 
of  the  contingency,  wdiich  are  denied  by  the  answer,  an  issue 
of  fact  is  created,  and  a  demurrer  to  the  answer  should  be 
overruled.'*® 

40  Bloodgood  V.  Bruen,  8  N.  Y.  362. 

41  McCornilolv  v.  Brown,  3G  Cal.  185,  and  cases  there  cited. 

42  -U'ait  V.  Morris,  G  Wend.  394. 

43  Supervisors  of  AUejjany  v.  Van  Campen,  3  Wend.  48. 

44  Bush  V.  Stevens,  24  Wend.  256. 

45  De  Wein  v.  Osborn,  12  Col.  407. 
4«Id. 


CHAPTEE   IV. 

GOODS  SOLD  AND  DELIVERED. 

§  685.   Goods  sold  and  delivered. 

Form  No.   159. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18. .  [or  be- 
tween two  dates,  naming  them],  at ,  the  plaintiff 

sold  and  delivered  to  the  defendant,  at  his  request,  certain  goods, 
to-wit  [describe  the  property  sold,  briefly,  at  least  as  to  its 
general  character]. 

II.  [Allege  the  price  agreed  to  be  paid,  or  the  reasonable 
value  of  the  goods,  as  the  case  may  be.] 

III.  That  the  defendant  has  not  paid  the  said  sum,  nor  any 
part  thereof  [if  any  payments  have  been  made,  add,  except, 
etc.,  stating  payments]. 

[Demand  of  Judgment.] 
In  an  action  against  a  parent  for  goods  sold  and  delivered  to 
his  child,  it  is  better  practice  to  allege  whatever  may  be  the 
truth  in  respect  to  the  matter,  rather  than  to  put  the  cause  of 
action  into  the  form  of  an  allegation  showing  simply  goods 
Bold  and  delivered  to  the  defendant.^ 

§   686.   The  same  —  another  form  —  common  count. 
Form  No.   160. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

T.  Tbat  on  the day  of ,  18.  .  [or  be- 
tween two  dates,  naming  tlieni  ],  at ,  the  defendant 

was  indebted  to  the  plaintiff  in  the  sum  of dollars, 

on  an  account  for  goods  [describo  the  property  sold  briefly,  at 
least  as  to  its  general  character]  sold  and  delivered  l)y  the  plain- 
tiff to  tbr  defendant  on  the  day  aforesaid  [or  between  the  dates 
aforesaid]   at  liis  rcfiuost. 

1  Charles  v.  Ballln,  4  Col.  App.  186, 
58 


§§  087-091  FORMS   OF   OOMPLAINTS.  458 

111.  That  the  defendant  has  not  paid  the  said  sum,  nor  any 
port  thereof  [if  any  payments  have  been  made,  add,  except,  etc., 
stating  payments] . 

[Demand  of  Judgment.] 

§  687.  Essential  allegations  —  amount  due.  The  failure  to 
state  the  amounts  due,  severally,  for  goods  and  for  money,  in 
a  confession  of  judgment,  would  be  fatal.^ 

§  688.  The  same  ~  at  his  request.  The  averment,  "  at  his 
request,"  is  not  requisite  in  New  York.^ 

§  689.  The  same  —  description  of  goods.  A  party  must  be 
presumed  to  know  what  was  intended  by  his  account,  and  there- 
fore, where  a  bill  of  sale  is  set  forth  in  liaec  verba,  it  remedies 
a  defect  in  the  description  of  the  quantity  of  goods  sold."* 

§  690.  The  same  —  implied  promise.  The  implied  promise  to 
pay  is  matter  of  law,  and  should  not  be  pleaded.^  Under  a 
count  for  goods  sold  and  delivered,  the  plaintiff  may  show  that 
his  chattels  had  been  wrongfully  converted  by  a  sale  of  them 
by  the  defendant,  who  had  received  the  money  therefor,  or  he 
may  waive  the  tort  and  sue  for  goods  sold.^ 

§  691.  The  same  — common  counts.  A  count  in  the  ordinary 
form  of  counts  in  indebitatus  assumpsit  for  goods  sold  and 
delivered,  is  sufficient.'''  Tlius,  an  allegation  that  the  defend- 
ant is  indebted  to  the  plaintiff  in  a  certain  sum  for  goods  sold 
and  delivered  to  him  at  his  request,  and  that  defendant  has  not 
paid  for  the  same,  states  a  cause  of  action.*     A  complaint  alleg- 

2  Cordier  v.  Schloss,  18  Oal.  576. 

■i  Aeoine  v.  American  Min.  Co..  11  How.  Pr.  24;  Glenny  v.  Hitoliius, 
4  id.  98;  Victors  v.  Davis,  1  Dowl.  &  L.  080;  sec  Allen  v.  Patterson, 
7  N.  Y.  470;  57  Am.  Dec.  .^)42.  If  tlio  complaint  allep:es  acceptance, 
it  is  not  dennuTable  because  it  fails  to  show  a  delivei-y  within  the 
time  agreed.  Bedell  v.  Kowalsky,  00  Oal.  236;  and  see  Logan  v. 
Apartment  Ass'n,  52  N.  Y.  St.  Rep.  132. 

4  Cochran  v.  Goodman,  3  Cal.  244. 

B  Farron  v.  Sherwood,  17  N.  Y.  227;  Mayes  v.  Goldsmith,  58  Ind. 
M. 

OHarpending  v.  Shoemaker,  37  Barb.  270. 

T  Freeborn  v.  Glazer.  10  Cal.  .337;  Abadio  v.  Carrillo.  32  Cal.  172; 
Magee  v.  Kast,  49  id.  141;  Allen  v.  Patterson,  7  N.  Y.  476;  57  Am. 
Dec.  rA2:  ITiggins  v.  Germaine.  1  Mon.  230;  see  ante,  §  613. 

SAbadie  v.  Carrillo,  32  Cal.  172. 


4:59  GOODS   SOLD    AND    DELIVERED.  §  691 

ing  that  between  specified  days  the  plaintiff  sold  and  delivered 
to  defendant,  at  his  special  instance  and  request,  a  large  quantity 
of  boots  and  shoes  of  a  specified  value,  and  that  there  is  due 
and  unpaid  therefor  a  sum  designated,  which  he  promised  to 
pay,  but  though  often  requested  by  them,  has  wholly  refused,  is 
sufficient  on  demurrer.*^  But  a  declaration  is  insufficient  which 
alleges  an  indebtedness  and  sets  forth  an  account,  but  does  not 
allege  the  sale  or  delivery  of  the  articles  to  the  defendant,  nor 
show  in  what  place  or  what  manner  the  indebtedness  accrued, 
whether  on  account  of  the  defendant  or  that  of  another.^"  An 
averment  that  the  defendant  is  indebted  to  the  plaintiff  on 
an  account  for  goods  sold  and  delivered  in  a  specified  sum, 
and  that  the  defendant  has  not  paid  the  same  nor  any  part 
thereof,  is  equivalent  to  an  averment  that  such  indebtedness  is 
due  and  unpaid,  there  being  no  averment  as  to  time,  terms,  or 
circumstances  of  payment  indicating  tlie  contrary.^^  It  is  not 
necessary  to  state  where  the  goods  were  sold.^^  "Where  the 
plaintiff,  under  a  contract  by  which  the  defendant  was  to  execute 
to  him  a  conveyance  of  certain  land  on  delivery  of  a  quantity 
of  wheat,  and  afterwards  rescinded  the  contract  on  account  of 
failure  of  title,  the  correct  form  of  pleading,  under  the  Code, 
in  an  action  to  recover  the  value  of  the  wheat,  is  held  to  be  the 
common  count  for  goods  sold  and  delivered,  omitting  all  refer- 
ence to  the  actual  contract.^^  The  Code  procedure  has  not 
changed  the  former  rule  of  pleading,  that  a  party  who  has  fully 
performed  a  special  contract  on  his  part  may  count  upon  the 
implied  assumpsit  of  the  other  party  to  pay  him  the  stipulated 
price,  and  is  not  bound  to  declare  specially  on  the  agreement.'"* 
In  a  complaint  in  an  action  by  several  plaintiffs,  to  recover  for 
goods  sold  and  delivered,  an  allegation  of  partnership  is  not 
necessary,  and  an  allegation  of  sale  and  delivery  sufficiently 
implies  that  the  goods  belong  to  the  plaintiff.^'"^  That  the  plain- 
tiff had  purchased  a  quantity  of  goods  from  W.  k  P.,  then  and 
there  acting  as  agents  of  the  defendant,  is  only  another  form  of 
declaring  that  he  had  purchased  from  the  defendant,  and  ia 

0  riiillips  V.  Rarfllitt.  tt  Rosw.  078. 

10  Mf.rslion  v.  Randall,  4  Cal.  324. 

11  Wilfox  V.  .Taniieson.  20  Col.  ir»8. 

12  I'.elilon  V.  Sliorb.  1)1    Cal.  141. 

IT  Aiikony  v.  Clark,  1  Wash.  St.  MO. 

14  TTiirfrina  v.  Newtown,  etc-..  M.  W.  Co..  00  N.  Y.  004:  Swan  Mfp.  Co. 
V.  ElRftrio  Liplit  Co..  40  \.  Y.  St.  Hop.  535. 

15  rhlllips  V.  Bartlett.  9  Bosw.  078. 


§§  01»v>-G'.)4:  FORMS    01-    COMrLAiNTS.  4G0 

good  on  (lonnivTcr.  Wliore  the  complaint  sots  forth  i)i  hacc  verba 
the  bill  o['  sale,  it  was  hold  to  remedy  a  delect  iu  the  description 
of  the  quantity  of  goods  sold.^** 

§  692.   The  same  —  short  form. 

Form  No.  i6i. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18. .  [or  be- 
tween certain  dates,  naming  them  J,  the  defendant  was  indebted 
to  the  plaintifl'  in  the  sum  of dollars,  on  an  ac- 
count for  goods  then  sold  and  delivered  by  the  plaintiff  to  the 
defendant  at 

II.  That  he  has  not  paid  the  same  nor  any  part  thereof  .^^ 

[Demand  or  Judgment.] 

§  693.  Balance  of  account  for  goods  sold.  Where  a  complaint 
stated  a  cause  of  action  for  goods  sold,  and  in  addition,  with  a 
view  to  meet  a  probable  defense  of  payment  based  upon  the  giv- 
ing of  certain  notes  by  defendant,  and  a  receipt  in  full  by 
plaintiff,  stated  the  making  of  the  notes  and  receipt,  and  al- 
leged facts  attending  the  transaction,  which,  if  true,  avoided 
its  effect  as  payment,  by  reason  of  fraud  and  misrepresenta- 
tion on  the  part  of  the  defendant,  it  was  hold,  that  the  allega- 
tions of  the  complaint  in  reference  to  the  transaction  claimed 
to  operate  as  payment,  were  not  material  allegations  requiring 
a  denial,  and  were  not,  therefore,  admitted  by  the  failure  of  de- 
fendant to  deny  them.^® 

§  694.  Nature  of  claim.  The  complaint  should  indicate  the 
nature  and  character  of  the  claim,  and  the  period  within  which 
it  arose.^® 

16  Coohran  v.  Goodman,  3  Cal.  244. 

17  This  form  is  supported  by  Allen  v.  Patterson,  7  N.  Y.  476: 
57  Am.  Deo.  542;  Aclams  v.  Holley,  12  How.  Pr.  .^20:  Cudlipp  v. 
Whipple,  4  Duer.  filO;  (^Trah-im  v.  Camman,  5  id.  607;  Chamberlain 
V.  Kaylor,  2  E.  D.  Smith.  l.'?4. 

iiCanfield  v.  Tobias,  21  Cnl.  .^r.O.  In  an  action  for  tlie  price  of 
goods  sold  and  delivered,  an  allegation  that  a  further  sum  is  due  as 
interest  does  not  introduce  a  se])arate  cause  of  action,  or  render 
the  complaint  ambipruous,  unintelligible  or  uncertain.  Friend,  etc., 
Lumber  To.  v.  Miller.  67  Cal.  464. 

19  Farcy  v.  Lee,  10  Abb.  Pr.  143. 


461  GOODS   SOLD   AND    DELIVERED.  §§  695-698 

§   695.   For  goods  sold  and  delivered  at  a  fixed  price. 

Form  No.   162. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,  18. .,  at 

,  he  sold  and  delivered  to  the  defendant  [fifty  casks 

of  sugar,  or  other  goods,  describing  them] . 

II.  That  the  defendant  then  promised  to  pay 

dollars  for  the  said  goods  [in  gold  coin  of  the  United  States]. 

III.  That  he  has  not  paid  the  same  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  696.  Debt,  when  due.  It  is  not  necessary  to  specify  any 
time  at  which  the  debt  was  to  be  paid.^^  A  general  promise 
is  to  be  construed  as  a  promise  to  pay  immediately.^^  And  if 
the  promise  was  to  pay  at  a  certain  time  not  yet  elapsed,  it  i** 
matter  of  defense.^^  But  if  a  day  was  fixed,  it  will,  if  stated, 
furnish  a  day  for  the  commencement  of  interest.^^ 

§  697.  Demand.  No  demand  is  necessary.^  On  an  agree- 
ment to  pay  on  request,  though  no  request  is  necessary,  a.  demand 
is  necessary  if  the  promisor  be  a  surety.^  But  upon  a  state 
of  facts  in  which  a  demand  would  be  necessary  if  the  plaintiff 
sued  for  damages  for  conversion,  it  is  equally  necessary  where 
he  sues  upon  the  implied  contract,  waiving  the  tort.^^  The 
averment  of  the  demand  is  proper,  to  fix  the  time  of  interest."^ 

§  698.  Gold  com.  Where  there  is  a  verbal  understanding 
that  the  price  of  the  goods  sold  shall  be  payable  in  gold  coin, 
it  may  be  enforced,  if  after  the  debt  has  accrued  and  suit  has 

20  Peets  v.  Bratt,  G  Barb.  022;  Gibbs  v.  Sotham,  5  Barn.  &  Add. 
911.  But  the  complaint  is  insufficient  if  it  does  not  allege,  either 
directly  or  indirectl.v,  that  the  debt  is  due  and  unpaid.  Jaqua  v. 
Shewaltor,  10  Ind.  App.  234;  Musselman  v.  Wise,  84  Ind.  248. 

21  reets  v.  Bratt,  0  Barb.  G22;  Gibbs  v.  Sotham,  5  Barn.  &  Adol. 
911. 

22  Smith  V.  Holmes,   10  N.  Y.  271. 

2.3  Van  Rensselaer  v.  .lewett,  2  N.  Y.  140;  TA  Am.  Dee.  21^^. 

24Gii)l)s  V.  Southam,  5  Barn.  &  Adol.  1)11;  Lake  Ontario  B.  R.  Co. 
V.  Mason,  10  N.  Y.  4.'^>1. 

25  Nelson  V.  Bostwick,  r>  Hill,  37;  40  Am.  Dec.  310;  Douglass 
V.  Bathbone,  f.  Hill.  143. 

2*!  Spoor  V.   Newell,  3  Hill,  .307. 

27  Beers  V.  Beynolds,  11  N.  Y.  HT.  SnfTicient  allegalion  of  demand. 
See  Frank  v.  Murray.  7  Mont.  4. 


§§  69{'-70*-2  Foinrs  OF  COMPLAINTS.  462 

boon  oomiuoneod,  one  of  tlio  linn,  in  llio  (irni  name,  makes  a 
contraot  in  writing  to  })ay  in  gold  coin,  said  contract  dated 
befm-o  the  sale  of  snch  goods,  provided  the  complaint  avers  a 
contraot  to  pay  in  gold,  made  before  the  goods  were  sold.^ 

§  699.  Hnec  verba.  When  the  complaint  sets  forth  in  hacc 
I'crba  the  bill  of  the  articles  purchased,  it  is  sufficient  to  inform 
the  defendant  with  what  he  is  charged,  for  he  is  presumed  to 
know  what  is  intended  by  his  own  account.  And  it  was  held 
to  remedy  a  defect  in  the  description  of  the  quantity  of  goods 
sold. 28 

§  700.   The   same,   at   a  reasonable   price. 

Form  No.   163. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  en  the   day  of   ,  18.  .,  at 

,  he  sold  and  delivered  to  the  defendant  [describe 

the  articles]. 

II.  That  the  same  were  reasonably  worth dollars. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

§  701.  Debt  due.  It  is  not  necessary  to  show  that  the  debt 
was  due  before  the  commencement  of  the  action,  nor  even  at 
the  date  of  the  complaint-^" 

§  702.  Promise.  The  promise  to  pay  alleged  in  the  common 
count  in  assumpsit  was  a  mere  conclusion  of  law  from  the  fact'? 
stated,  and  need  not  be  averred  under  the  Code,  which  requires 
only  the  facts  to  be  stated. ^^  From  the  indebtedness  admitted, 
the  law  implies  a  promise  to  pay,  and  the  denial  of  any  express 
promise  raises  no  issue.^^  The  law  implies  a  promise  to  pay  so 
much  as  the  goods  are  reasonably  worth.  This  is,  however,  a 
matter  of  law  and  should  not  be  pleaded.^^ 

28  Meyer  v.  Kohn.  29  Cal.  278;  see  Cal.  Oode  Civ.  Pro.,  §  6G7. 

29  Cochran  v.  floodman,  3  Cal.  24.5. 

30  Smith  v.  Holmes,  19  N.  Y.  271. 

31  Wilkins  v.  Stedjrer.  22  Cal.  232. 

32Levison  v.   Schwartz.,  22  Cal.  229;  83  Am.  Dec.  61. 
33  Farron  v.  Sherwood,  17  N.  Y.  230;  72  Am.  Dec.  461. 


463  GOODS   SOLD    AND    DELIVERED.  §§  703-706 

§  703.  Value,  allegation  of.     The  allegation  of  value  is  mate- 
rial.3-* 

g  704.   The  same,  on  specified  price  and  credit. 

form  No.   164. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18. .,  at 

,  the  plaintiff  sold  and  delivered  to  the  defendant, 

at  his  request  [describe  articles],  for  the  sum  of 

dollars. 

II.  That   the   defendant   promised   to   pay   therefor  to  the 

plaintiff  the  said  sum  of dollars,  on  or  before  the 

day  of ,  18.  . 

III.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  705.  Demand,  averment  of.  The  object  of  averring  a  de- 
mand is  simply  to  carry  interest.  It  has  been  held  in  New 
York  that  where  goods  are  purchased  at  a  price  fixed,  and  with- 
out fixing  any  term  of  credit,  if,  after  reasonable  time  elapses, 
the  account  is  presented  and  impliedly  admitted,  interest  is 
properly  chargeable  from  the  time  of  the  demand.^ 

§  706.  The  same,  by  assignee  for  price  of  stock  and  fixtures 
of  store  and  good  will,  payable  by  installments.36 

Form  No.   165. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18.  .,  at 

,  one  A.  B.  sold  and  delivered  to  the  defendant 

the  stock  and  fixtures  of  the  grocery  store.  No ,  in 

street,  in ,  the  property  of  said  A.  B., 

and  bargained,  sold,  and  relinquished  to  the  defendant  the  good 
will  of  the  business  theretofore  carried  on  by  the  said  A.  B. 

II.  That  the  dofondant  promised  to  pay  to  the  said  A.  B. 

therefor  the  sum  of dollars,  in  five  equal  monthly 

installments,  the  first  installment  to  be  paid  on  the   

day  of 18.  .,  and  the  remaining  installments  to 

34  0reporj'  v.  Wr1;rlit,  11  Abb.  Tr.  417. 

s^BoerR  v.  "RoynoUls,  11  N.  Y.  97.  102;  afTirniinp:  S.   C,  32  Barb. 
2.S8. 
86  gpe  Laurence  Nat.  Bank  v.  Kowalsky,  105  Cal.  41. 


§^  707,  708  FORMS   OF   COMPLAINTS.  404 

be  paid  on  the day  oi!  each  succeeding  month,  until  all 

sliall  be  paid. 

111.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

i\'.   [Allege  assignment  to  plaintill'.] 

[Demand  of  Judgment.] 

§  707.  Good  will.  Good  will  of  a  trade  is  the  probahility  that 
the  business  will  continue  in  the  future  as  in  the  past,  adding 
to  the  profits  of  tlie  concern,  and  contributing  to  the  means  of 
meeting  its  accruing  engagements,  and  is  an  element  to  he 
considered  in  determining  whether  at  a  given  date  the  parties 
conducting  the  business  were  solvent.  It  is  a  part  of  the  pari- 
nerslup  property,  and  adds  to  the  value  of  property  and  stock, 
and  will  accompany  the  salc.^'  Plaintiff  having  bought  certain 
horses  of  defendant,  as  also  the  "good  will"  of  a  mercantile 
house  in  the  matter  of  drayage,  can  not  sue  to  recover  back  the 
purchase  money  on  the  ground  that  such  "good  will"  is  not 
vendible.^^ 

§  708.  The  same,  by  a  firm  in  which  there  is  a  dormant  part- 
ner, the  price  being  agreed  upon. 

Form  No.   i66. 
[State  and  County.]  [Coukt.] 


A.  B.,  J.  H.,  and  J.  C.  J.,  Plaintiffs,  , 

against  ^ 

John  Doe,  Defendant.  j 

J 

The  plaintiffs  complain  of  the  defendant,  and  allege: 

I.  That  the  plaintiffs  are  copartners  in  business  in  the  city  of 
San  Francisco,  under  the  firm  name  of  B.  &  H.,  and  that  said 
plaintiff,  J.  C.  J.,  is  a  dormant  partner  in  said  firm. 

II.  That  on  or  about  the day  of ,  18 .  . , 

the  said  plaintiffs,  in  their  firm  name,  sold  and  delivered  to  de- 
fendant a  certain  quantity  of  merchandise,  to-wit,  dry  goods, 
in  the  quantities  and  at  and  for  the  prices  specified  in  the  bill 
thereof,  hereto  annexed,  marked  "Exhibit  A,"  and  made  part 
of  this  complaint,  amounting  to  the  sum  of dollars. 

.37p,oll  V.  Ellis.  .3.3  Cal.  f>20. 

38  Buckingham  v.  Waters,  14  Cal.  146. 


4:65  GOODS  "SOLD    AND    DELIVERED.  §§  709- 7L1 

111.  Tliat  dei'eudant  promised  to  pay  the  same  at  the  expira- 
tion of  four  montlis  from  the  said  date  of  sale. 

lY.  That  said  time  has  elapsed,  and  the  said  defendant  has 
not  paid  the  same  or  any  part  thereof .^^ 

[Demand  oe  Judgment.] 

§  709.  Tor  goods  delivered  to  a  third  party  at  defendant's 
request,  at  a  fixed  price. 

form  A'o.   i6y. 

[Title.] 
The  plaintit!  complains,  and  alleges: 

I.  That  on  the   day  of    ,  18.  .,  at 

,  he  sold  to  the  defendant  [two  hundred  bags  of 

coffee],  and  at  the  request  of  the  defendant,  delivered  the  same 
to  one  A.  B. 

II.  That  the  defendant  promised  to  pay  to  the  plaintiff 
dollars  therefor. 

III.  That  he  has  not  paid  the  same,  nor  any  part  thereof- 

[Demand  of  Judgment.] 

§  710.  Delivery.  Wlien  goods  sold  are  delivered  to  a  third 
person  for  the  exclusive  use  of  such  person,  the  jjlaintiff,  in  an 
action  against  the  purchaser,  is  hound  to  aver  delivery  to  the 
third  party  in  the  complaint.  It  is  only  as  a  conclusion  of  law 
that  such  a  delivery  amounts  to  a  delivery  to  the  purchaser.^*' 
But  a  variance  in  this  respect  may  be  disregarded  if  the  defend- 
ant does  not  appear  to  have  been  misled.'*^ 

§  711.  Who  liable.  That  person  is  liable  to  whom  the  creditor 
at  the  time  gave  the  credit.^^     But  if  the  credit  is  not  given 

39  As  to  the  necessity  of  joining-  the  dormant  partner  as  plaintiff, 
see  ante,  §  142.  That  a  dormant  party  is  a  necessaiy  party  plain- 
tiff, see  Secor  v.  Keller,  4  Duer,  41G;  compare  Belshaw  v.  Colie, 
1   E.  D.  Smith,  213. 

40  Smith  V.  Leland,  2  Duer,  497.  In  an  action  against  two  as 
r>artners,  for  goods  sold  and  delivered  to  them  at  their  instance 
and  reciuest,  wliere  tlie  evidence  is  to  the  effect  that  they  liad 
iiH^rely  undci'taJven  to  l»e  responsible  for  the  purchase  of  said  goods 
by  a  rortain  corpoi-ation.  tlic  jury  should  l)e  instructed  to  return  a 
verdict  for  tlic  dcfeixhints,  if  tiiey  find  that  the  goods  were  sold 
to  such   fori»oration.     Kelly   v.  .Tohnsim,  i")  Wash.   St.   TS.'j. 

41  Rogers  v.  Verona,  1  Bf^sw.  417;  Briggs  v.  Evans,  1  E.  D.  Smith, 
102. 

42Storr  V.  Scott.  0  Carr.  &  V.  1^4^;  Chit,  on  Cont.  220;  StoiT  on 
Agency,  213.  §  203;  Smith's  Merc.  L.  212. 
Vol.  1—59 


§  713  FORMS  OF  COMPLAINTS.  406 

to  the  person  making  such  agreement,  his  undertaking  is  col- 
lateral, and  must  be  in  writing."*^ 

$  712.  For  goods  sold,  but  not  delivered,  price  fixed. 

form  No.   i68. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of  ,  18. .,  at 

,  he  sold  to  the  defendant  [all  the  potatoes  then 

growing  on  his  farm  in ] . 

II.  That  defendant  promised  to  pay  plaintiff  

dollars  for  the  same. 

III.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

«  Dixon  V.  Frazee,  1  E.  D.  Smith,  32;  Briggs  v.  Evans,  id.  192. 


CHAPTER  V. 

GUARAXTIES. 

§   713.   Against  principal  and  sureties  on  contract  for  work. 
Form  No.   169. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of  ,  18.  .,  at 

,  certain  articles  of  agreement  were  made  and  en- 
tered into  between  the  plaintiff  and  the  defendants  under  their 

respective  hands  and  seals,  and  bearing  date  the day 

of ,  18.  .,  of  which  the  following  is  a  copy  [insert 

copy]. 

II.  That  the  plaintiff  afterwards  duly  perfonned  all  the  con- 
ditions of  the  said  contract  on  his  part,  and  that  the  same  was 

lully  completed  on  the   day  of   ,  18.  ., 

and  that  on  that  day  he  was  entitled  to  have  and  receive  from  the 
said  defendants,  upon  the  said  contract,  for  the  said  work,  men- 
tioned in  the  said  agreement,  a  large  sum  of  money,  viz.,  the 
sum  of dollars. 

III.  That  the  said  defendants  have  wholly  failed  to  perfonn 
the  said  contract  on  their  parts. 

IV.  That  they  have  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  714.  Absolute,  conditional,  and  continuing  guaranties  — 
demand.  A  mere  offer  to  guarantee  is  not  binding  until  notice 
of  its  acceptance  is  communicated  by  the  guarantee  to  the 
guarantor,  but  an  absolute  guaranty  is  binding  upon  the  guaran- 
tor, without  notice  of  acceptance-^  In  cases  of  a  clear  and 
absolute  guaranty,  demand  on  the  principal  and  notice  to  the 
guarantor  is  not  necessary.^     But  where  the  guarantor  is  to 

1  f'al.  r'ivil  rndo,  §  270.";  Fisk  v.  Stoiio.  C  Dak.  ."^r). 

2  Allen  V.  TtiKlitiiiero,  20  .Toliii.s.  P.CTr,  11  Am.  Doc.  2.SR;  Mann  v. 
Erkford's  Ex'rs.  !.'>  Wend.  r.()2;  K<<inlile  v.  Wallis.  10  id.  .''.74; 
Riislimoro  v.  MiUor.  4  K-lw.  Tli.  S4:  Van  Kpnssrlaor  v.  Miller,  Hill 
&  D.  Supp.  237;  McKenzio  v.   Farrcil,  4  Bosw.  192;   Barhydt  v. 


p  711  Foinr;^  of  complaints.  468 

]);iv,  in  oaso  the  priiKijial  lails  to  pa}'  on  (k'liuuul,  a  demand  is 
necessary,  anil  niusl  be  averred  and  j)roved.''  11'  one  giiai'antees 
a  del.)t  lo  l)e  eolleeted  by  liiniself,  demand  on  the  principal  debtor 
need  not  be  shown:  otherwise  on  a  demand  against  one  who 
merely  guarantees  a  debt  where  the  creditor  is  to  collect."*  Thus 
in  an  action  where  the  plaintilT  guaranteed  that  certain  certili- 
cates  of  stock  sliould  ])ay  ten  per  cent.  ])er  annum,  an  averment 
that  no  dividend  was  made  was  insnfficient.  The  undertaking 
was  collateral,  and  in  all  snch  cases  a  demand  and  notice  must 
he  averred.^*  On  a  general  guaranty  that  debtor  will  pay,  de- 
mand on  the  principal  is  not  necessary  to  fix  the  liability  of  the 
surety,  except  for  laches  of  the  creditor.*'  So  where  demand 
would  be  useless,  as  where  the  principal  debtor  is  insolvent.'^ 

The  liability  of  a  conditional  guarantor  is  commensurate  with 
that  of  his  principal,  and  he  is  no  more  entitled  to  notice  of  a 
default,  unless  the  act  is  beyond  his  inquiry.^  Where  the  lia- 
bility of  the  guarantor  depends  upon  an  action  against  the 
principal,  it  is  only  necessary  to  show  a  suit  against  the  prin- 
cipal.^ Where  one  guarantees  the  debt  of  another  in  considera- 
tion of  a  stay  of  proceedings  against  the  debtor,  the  promise 
of  the  creditor  is  a  condition  precedent,  and  its  performance 
must  be  alleged  in  an  action  against  the  guarantor.^*'  Upon  a 
guaranty  that  the  judgment  is  collectible,  proceedings  for  the 
collection  in  due  course  of  law  is  a  condition  precedent,  and  its 
performance  must  be  shown,  or  excuse  for  its  nonperformance." 

When,  by  the  terms  of  the  guaranty,  it  is  evident  tlic  object 

Ellis,  4.5  N.  Y.  110;  Cordier  v.  Thompson.  S  Daly.  172;  but  compare 
Mechanics'  Fire  Ins.  Co.  v.  Ogden,  1  Wend.  137;  Morris  v.  Wads- 
worth,  11  id.  100. 

3  Douglass  V.  Rathbone,  5  Hill,  143;  Bank  of  N.  Y.  v.  Livingstone, 

2  .Tohns.  Cas.  409;  Nelson  v.  Bostwick,  5  Hill,  37;  40  Am.  Dec.  311; 
Busli  V.  Stevens,  24  Wend.  2!')n. 

4  Milliken  v.  Byerly,  0  Hoav.  Pr.  214. 

5  Hank  v.  Crittenden,  2  McLean,  557;  Hernandez  v.  Stilwell, 
7  Daly.  3n0;  Greely  v.  McCoy,  3  S.  Dak.  218. 

6  Clark  V.  Bnrdett,  2  Hall,  217;  Union  Bank  v.  Coster's  Executors, 

3  N.  Y.  203;  .53  Am.  Dec.  280. 

7  Morris  v.  Wadsworth,  11  Wend.  100;  see,  also,  Cooke  v.  Nathan, 
16  Barb.  342. 

8  Douglass  v.  Howland,  24  Wend.  35. 

0  Morris  v.  Wadsworth,  17  Wend.  103;  but  see  Cooke  v.  Nathan, 
16  Barb.  342;  see,  also,  Prentiss  v.  Garlan'd,  64  Me.  155. 
If' Smith  V.  Compton.  6  Cal.  24. 
11  Mains  v.  Haight,  14  Barb.  76. 


469  GUAKAKTIES.  §§    715,  716 

is  to  give  a  standing  credit  to  the  principal,  to  be  used  from 
time  to  time  either  indefinitely  or  until  a  certain  period,  then 
the  liability  is  continuing;  but  when  no  time  is  fixed,  and 
nothing  in  the  instrument  indicates  a  continuance  of  the  un- 
dertaking, the  presumption  is  in  favor  of  a  limited  liability  as  to 
time,  whether  the  amount  is  limited  or  not.^-  The  intention 
of  the  parties  must  be  ascertained  and  carried  into  effect,  and 
in  arriving  at  that  intent,  the  language  of  the  contract  must  be 
construed  according  to  its  plain  and  obvious  import.^^  In  case 
of  ambiguity,  the  language  is  to  be  construed  most  strongly 
against  the  guarantor.^'* 

§  715.  Consideration.  A  guaranty  must  be  in  writing,  but  th.e 
consideration  need  not  be  stated.^''  And  it  is  confined  to  the 
person  or  persons  to  whom  addressed  to  give  a  credit  on  it.^^  A 
guai'anty  not  under  seal  nor  expressing  consideration,  made 
contemporaneously  with  the  contract  guaranteed,  is  a  part  of 
the  contract,  and  the  expression  of  the  consideration  in  the 
guaranty  takes  the  contract  out  of  the  Statute  of  Frauds.^" 
Thus  a  guaranty  indorsed  on  a  charterparty  at  the  same  time 
with  its  execution,  and  the  consideration  of  one  being  in  fact  the 
consideration  of  the  other,  is  good.^^  The  charterparty  re- 
ferred to  in  the  guaranty  becomes  part  thereof.  But  if  the 
guaranty  were  executed  subsequently,  it  would  fail  for  want  of 
consideration,  or  of  the  expression  of  consideration.^'-* 

§  716.  Guaranty  by  factor.  A  factor  who  charges  his  prin- 
cipal with  a  guaranty  commission  upon  a  sale,  thereby  assumes 

12  Christ  V.  Burlingame,  G2  Barb.  351;  Doscher  v.  Shaw,  r>2  N.  Y. 
<;02;  Sickle  v.  Marsh,  44  How.  Tr.  91.  As  to  liability  of  guai-antors, 
generally,  see  Cal.  Civil  Code,    S§  2806-2815. 

13  Christ  V.  Biirlingaiiio,  02  Barb.  .351. 

14  Id. 

15  Packard  v.  Kiolianlson,  17  Mass.  122;  0  Am.  Dec.  12.3.  A  com- 
plaint  upon  a  guaranty  which  expi-ossly  alleges  that  it  was  given 
in  consideration  tliat  the  plaintiff  would  renew  the  note  of  a  tliird 
person,  is  sufficient  on  dcnnirrcr,  altliongh  it  also  sets  forlli  a 
writing  which  puriMJi'ts  lo  ((nilaiii  ihi-  gnaraiilcc,  hut  which  is 
defective  under  tlie  Statute  of  l-'rauds  in  not  stating  the  con- 
sideration.   Caldll  Iron  "Works  v.  Pendx-rton.  30  Abb.  N.  C.  450. 

i«  Taylor  v.  Wetniore,  10  Ohio,  400. 

17  Jones  v.  Post,  0  Cal.  102;  sec  Civil  Code,  8  27!)2;  KUenwood  v. 
Fidts.  0.3  Barb.  821;  Cagan  v.  Stevens,  4  Utah,  348. 
iHIlazeltine  v.  Larco,  7  Cal.  32. 
le  Id. 


§§  717,  718  FOKMS    OF    COMPLAINTS.  470 

absolutolv  to  pay  the  price  when  it  falls  clue,  as  if  it  were  a  del)t 
of  his  c)\v]i,  and  not  as  a  mere  guaianlor  for  the  purchaser; 
but  he  does  not  thereby  assume  any  additional  responsibility  for 
the  safety  of  his  remittances  of  the  proc-eeds.^ 

§  717.  Joinder  of  parties.  Jn  New  York  it  is  held  that  the 
princii)al  ami  sureties  who  engage  by  different  instruments,  al- 
though written  upon,  the  same  paper,  should  not  be  joined  as 
parties  in  one  action.-^  So  a  claim  against  a  debtor  on  a  sealed 
contract,  and  one  against  a  guarantor  by  another  sealed  instru- 
ment in  the  paper,  can  not  be  united,--  as  the  original  liability 
and  the  guaranty  are  separate  contracts.^'^  But  they  may  bo 
joined  when  they  engage  by  one  instrument.-*  In  Iowa,  un- 
der a  similar  statute,  the  contrary  is  held.-^  In  California  they 
may  be  joined  whether  the  liability  is  created  by  the  same  or 
separate  instruments.^^ 

§  718.  Promise  in  writing.  It  need  not  be  alleged  in  the 
complaint  that  the  promise  of  the  guarantor  was  in  writing.^^ 
A  parol  guaranty  of  the  payment  or  collection  of  a  note,  given 
on  its  transfer  in  payment  for  property  purchased,  or  debt  due 
by  the  guarantor,  is  not  within  the  Statute  of  Frauds,  but  miiy 
be  enforced."^  An  agent  authorized  to  sell  a  note,  and  not 
limited  by  instructions,  can  bind  his  principal  by  a  guaranty 
that  it  is  good  or  collectible.^^ 

20Cal.  Civil  Code,  §  2029. 

21  Allen  V.  Fosgate,  11  How.  Pr.  218;  overmlinc  Enos  v.  Thomas, 
4  id.  48. 

22  De  Ridder  v.  Schermerhorn,  10  Barb.  f>38. 

23  Brewster  v.  Silence,  8  N.  Y.  207;  overruling  Enos  v.  Thomas, 
4  How\  Pr.  48. 

24  Carman  v.  Plass,  23  N.  Y.  286. 

25  Marvin  v.  Adamson,  11  Iowa,  371. 

26  Code  of  Civ.  Pro.,  §  383.  In  Utah,  the  maker  and  the  guarantor 
of  a  note  may  be  sued  thereon  in  the  same  action.  Gagan  v. 
Stevens.  4  T^tah,  348. 

2T  1  Chit.  PI.  270;  Wakefield  v.  Greenhood.  29  Cal.  .597. 

28  Lessee  v.   Williams,  6  Lans.  228. 

29  Lossee  v.  Williams,  6  Lans.  228.  As  to  the  sufficiency  and 
validity  of  parol  promises,  as  original  and  Independent  contracts, 
to  exfhide  the  operation  of  the  Statute  of  Frauds,  determined 
in  cases  depending  on  i)articular  facts,  see  Clifford  v.  Lnhring, 
on  111.  401;  Bunting  v.  Darbyshire,  7.5  id.  408;  Horn  v.  Bray,  m  Md. 
rir>n;  Wills  v.  Brown,  118  Mass.  137;  Walker  v.  Hill,  119  id.  249; 
Booth   V.  Eighmie.  00  N.   Y.   2.38;  19  Am.   Rep.   171;  Townsend  v. 


471  '  GUARANTIES.  §§  719,  720 

§  719.  On  an  agreement   to   be   answerable  for  the   price   of 
goods  sold. 

Form  No.   170. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of   ,  18.  .,  at 

,  in  consideration  that  the  plaintiff,  at  the  re- 
quest of  the  defendant,  would  sell  to  one  A.  B.,  on  a  credit  of 

months,  such  goods  as  said  A.  B.  should  desire  to  buy 

of  this  plaintiff,  the  defendant  promised  to  be  answerable  to  the 
plaintiff  for  the  payment  by  said  A.  B.  of  the  price  of  goods 
so  sold  on  credit. 

II.  That  the  plaintiff  afterwards,  and  on  the  faith  of  said 
guaranty,  sold  and  delivered  to  said  A.  B.  [describe  the  goods], 

for  the  sum  of dollars,  upon  a  credit  of 

months,  of  all  of  which  the  defendant  had  notice. 

III.  That  payment  of  the  same  was  thereafter  demanded  from 
said  A.  B.,  but  the  same  was  not  paid. 

IV.  That  notice  of  such  demand  and  nonpayment  was  given 
to  the  defendant. 

V.  That  on  the    day  of    ,  18 ... ,  at 

,  payment  of  the  same  was  demanded  by  the  plain- 
tiff from  the  defendant. 

VI.  That  the  defendant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Demand  of  Judgment.] 

§  720.  Form  of  guaranty.  "  ?ilr.  H.,  Sir:  You  can  let  IX 
have  what  goods  he  calls  for,  and  I  will  see  that  the  same  are 
settled  for.     Yours  truly,  H.  S.  B."—  is  a  continued  guaranty.^*' 

Where  a  vendor  of  shares  of  fruit,  growing  in  an  orchard, 
guaranteed  the  vendee  that  he  should  collect  the  fruit  without 
disturbance  and  annoyance,  and  the  vendee  was  subsequently 
prevented  from  gathering  all  the  fruit  by  tliird  persons,  the 
vendee  has  a  right  of  action  against  the  vendor  on  his  guaranty, 

Lonjr,  77  Penn.  St.  143;  IS  Am.  Kep.  438.  For  action  aijainst 
principal  anfl  sureties  on  promissory  noto,  and  asainst  jruarantors 
thereon,  see  rromissoiT  Notes,  posl.  In  an  action  to  charge  de- 
fondants  as  ffuarautnrs  of  a  note,  the  fomplaint  can  not  l)o  amended 
at  the  trial  to  conforni  tlie  ploadinR  to  the  proof  fixing  the  liability 
of  dffendants  as  indorsers.  Peters  v.  Chamberlain,  13  N.  Y.  Supp. 
4r)7. 
80  iTotehkiss  v.   liarnes,  34   f'nnn.   27. 


§§  rn-m 


FORMS   OF    COMI'LAINTS.  473 


as  lie  was  not  bouiul  to  lake  a  porlioii  ol'  hit-  coutract.^^  But 
where  the  one  person  \\i\ne,  "  Let  M.  (the  writer's  brother) 
have  what  goods  he  may  want,  on  lour  niontlis,  and  he  will  pay 
as  usual,"  it  was  held  to  be  merely  an  expression  of  conlidence, 
and  not  a  guaranty.^^ 

§  721.  Good  or  collectible.  A  guaranty  to  the  effect  that  an 
obligation  is  good,  or  is  collectible,  imports  that  the  debtor  is 
solvent,  and  that  the  demand  is  collectible  by  the  usual  legal 
proceedings,  if  taken  with  reasonable  diligence.^^  Such  guar- 
anty is  not  discharged  by  an  omission  to  take  proceedings  upon 
the  principal  debt,  or  upon  any  collateral  security  for  its  pay- 
ment, if  no  part  of  the  debt  could  have  been  collected  thereby.^* 

§  722.  Liability,  limitation  of.  Where  one  guarantees  in 
writing  the  debt  of  another  for  goods  sold  and  delivered,  by 
the  guaranty  the  defendant  becomes  the  debtor  of  plaintiff,  and 
no  limitation  could  defeat  the  action,  except  that  prescribed 
for  indebtedness  evidenced  by  the  written  guaranty.^^  A  delay 
of  three  years  in  giving  notice  that  a  guaranty  in  similar  terms 
has  become  operative,  discharges  the  guarantor. ^^ 

§  723.  Notice  —  pleading.  Where  the  guaranty  relates  to  a 
bill  of  goods,  the  guarantor  must  be  immediately  notified  of  the 
acceptance  of  the  guaranty ,^'^  to  be  given  in  a  reasonable  time.'^* 
In  some  of  the  states,  the  guarantor  is  entitled  to  notice  that 
his  guaranty  has  been  aecepted.^^  On  a  guaranty  of  prompt 
payment  an  allegation  that  the  guarantor  has  not  paid  is  es- 
sential. ]\Ierely  alleging  that  the  principal  debtor  has  not  paid 
is  insufficient.'*"     Where   a   note   is  indorsed,   "For   value   re- 

31  Dabovich  v.  Emeric.  12  Cal.  171. 

•"■2  Eaton  V.   'Slfiyo,   118  INIass.  141;  and  see  Switzer  v.  Baker,  95 
Cal.  .539. 
3"  Cal.  Civil  Code,  §  2800. 

34  Id.,  §  2801. 

35  Whitins  V.  Clark,  17  Cal.  407. 
36Whitinfr  v.  Stacy,  1.5  Gray.  270. 

37  Taylor  v.  Wetmore.  10  Ohio,  490. 

38  Mnssey  v.  Kaynor,  22  Tick.  22.3:  Norton  v.  Eastman,  4  Greenl. 
521;  Tuckei-mnn  v.  Frencli.  7  id.  11.5;  Babcock  v.  Bi-yant,  12  Tick. 
133;  Bookman  v.  Hale,  17  .Johns.  134. 

39  Oaks  v.  Weller,  13  Yt.  100;  37  Am.  Dec.  .583:  Hank  v.  Crittenden. 
2  McLean,  .5.57;  How  v.  Nicliols,  9  Shep.  175;  Hill  v.  Colvin,  4  How. 
(Miss.)  231. 

40  Roberts  v.  Treadwell,  50  Cal.  520. 


473  GUARANTIES.  §  734 

ceived  I  hereby  guarantee  the  payment  of  the  within  note,  de- 
mand lor  payment,  protest  and  notice  of  protest  waived,"  the 
undertaking  is  not  a  strict  or  collateral  guaranty,  but  an  origi- 
nal promise  to  pay  the  note,  and  in  an  action  thereon  it  is  not 
necessary  to  allege  the  insolvency  of  the  maker,  or  that  the 
plaintiff  made  an  effort  to  collect  the  note.^^  The  complaint 
in  an  action  on  a  guaranty  to  pay  a  note  out  of  a  particular 
fund,  after  the  same  has  been  collected  by  a  guarantor,  is  suffi- 
cient on  demurrer,  without  an  averment  that  all  of  the  fund  has 
been  collected.'*^  A  complaint  on  a  written  guaranty,  purport- 
ing to  be  signed  by  a  firm,  the  action  being  against  a  single 
defendant,  does  not  state  a  cause  of  action  as  to  him  without 
showing  that  he  alone  is  bound  by  the  guaranty,  and  it  is  not 
sufficient  to  allege  that  he  agreed  to  give  the  guaranty,  and 
that  he  has  signed  it  himself.*^ 

S  724.    Against    guarantor  of  mortgage  to  I'ecover  deficiency- 
after  foreclosure. 

Form   A'o.    171. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  or  about  the day  of ,  18 .  . , 

the  defendants  entered  into  an  agreement  with  the  plaintiff, 
under  their  hands  and  seals,  in  the  words  and  figures  follow- 
ing:     [Copy  agreement.] 

II.  That  the  principal  sum  secured  l)y  the  note  and  mortgage 
referred  to  in  the  said  agreement  became  due  and  payal:)le  on 

the day  of ,  18 .  . ,  and  that  on  or  about, 

etc.,  the  plaintiff  commenced  an  action  in  the  Superior  Court 
of  the  county  of in  f his  state,  for  the  foreclosure 

41  Wood  V.  Farnham,  1  Okl.  S75;  and  see  Ward  v.  Wilson,  100  Ind. 
52;  .50  Am.  Rep.  703;  Nading  v.  McGregor,  121  Ind.  405;  Sh(>arer  v. 
Poalc,  9  Ind.  App.  282.  Whether  an  agreement  by  a  third  jiarty 
to  pay  for  STii)i)lies  furnished  to  a  conjoration  is  one  of  orifrinal 
I)r(.rnisf'  or  of  fruaranty  is  a  (piestion  of  fact  to  be  dotorniined 
from  the  circumstances  of  the  particular  case.  It  is  not  determined 
1>y  tlie  fact  tliat  diar^'es  are  made  and  statements  furnished  to 
the  coiTioration.  if  tiie  i)r'>niisoi-  so  ordered;  Init  if  any  credit  was 
in  fact  Kiven  I0  flie  corpoi-ation,  f)r  it  was  treated  as  in  any  decree 
liable  for  tlie  indebtedness,  tlie  promisor  can  not  bo  charged  as 
an  original  conti-actor,  but  at  most  as  a  mere  guai-antor.  Harris 
V.  Frank.  SI  f'al.  2Hf>. 

42:\Inll(T  V.   Olini,   00  r.-il.   47.^. 

43  Rose  V.   I'cldiiiiiii,  07  ("al.   KMi. 

60 


§  725  FORMS    OF   (H)MPLAINTS.  474 

of  the  said  mortgage;  and  such  proceedings  were  thereupon  had, 

that  on  the day  of ,  18. .,  a  decree  was 

made  by  the  said  court,  for  the  foreclosure  of  the  said  mortgage 
and  sale  of  tlie  premises;  and  that  iC  the  proceeds  of  such  sale 
should  be  insulHcient  to  pay  the  amount  reported  due  to  the 
plaintitf,  with  interest  and  costs,  the  amount  of  such  deficiency 
should  be  specified  in  the  report  of  sale  therein,  and  W.,  one 
of  the  defendants  therein,  should  pay  the  same  to  the  plaintiff, 

III.  Tiiat  pursuant  to  said  decree  or  judgment-order,  the 
premises  were  duly  sold  on,  etc.,  by  the  sheriff  of,  etc.,  for  the 
price  or  sum  of,  etc.  [and  that  the  plaintiff'  became  the  pur- 
chaser thereof]. 

IV.  That  upon  said  sale  there  occurred  a  deficiency  of,  etc., 
as  appears  by  the  sheriff"s  report  of  said  sale,  duly  filed  in  the 
office  of  the  clerk  of,  etc.,  and  that  thereupon,  to-wit,  on  the 

day  of ,  18 .  . ,  a  judgment  was  rendered 

in  said  court  against  W.  in  favor  of  the  plaintiff',  for  the  said 

sum  of,  etc.,  with  interest  from ,  18.  .,  of  which 

no  part  has  been  paid. 

V.  That  before  the  commencement  of  this  action,  he  de- 
manded of  the  defendants  payment  of  the  amount  of  such  de- 
ficiency, and  at  the  same  time  tendered  to  them  an  assignment 
of  said  judgment  against  AV.,  duly  executed  by  the  plaintiff,  but 
that  the  defendants  refused  to  pay  the  same,  and  have  ever  since 
neglected  and  refused  to  pay  the  same,  although  the  plaintiff* 
has  always  been,  and  still  is,  ready  and  willing  to  deliver  to 
said  defendants  an  assignment  of  said  judgment  upon  being 
paid  the  amount  due  thereon.*^ 

[Demand  of  Judgment.] 

§  725,  Action  may  be  on  the  note.  That  a  mortgage  given 
to  secure  the  payment  of  several  notes  falling  due  at  different 
times,  provides  for  payment  at  times  or  in  modes  different 
from  the  notes,  is  no  objection  to  suit  on  the  notes  at  their  ma- 
turity. The  mortgage  is  no  part  of  the  contract  of  indebted- 
ness.*^ 

44  This  form  is  from  "  Abbott's  Forms,"  vol.  1,  p.  295,  and  is 
sustained  by  Goldsmith  v.  Brown,  .3.5  Barb.  485,  but  the  recovery- 
is  limited  by  the  sum  actually  paid. 

4''.  Robinson  v.  Smith,  14  Tal.  95.  As  to  actions  against  adminis- 
trators and  executors,  see-aw^^,  §  417,  et  seq. 


475  GUARANTIES.  §§  736-728 

§  726.  Demand  of  judgment.  If  the  sheriff  returns  the  amount 
due,  and  the  plaintiff  has  not  been  fully  paid  by  the  sale  of  the 
mortgaged  property,  the  clerk,  without  further  order  of  the 
court,  dockets  the  judgment  for  the  balance  due  against  those 
defendants  named  in  the  judgment  as  personally  liable  for  the 
debt,  upon  which  docketed  judgment  execution  may  issue.^ 

§  727.  Interest.  Where  the  assignee  of  a  mortgage  agreed 
to  waive  his  lien  in  favor  of  one  who  had  agreed  to  advance 
money  to  replace  buildings  destroyed  by  fire,  but  no  agreement 
at  the  time  was  made  as  to  interest,  the  guaranty  of  the  assignee 
extended  no  further  than  the  contract,  and  as  this  was  silent  as 
to  the  interest,  a  higher  rate  of  interest  than  the  law  allowed 
could  not  be  collected.*'^ 

S  728.  Mortgage  as  security.  This  form  of  action  would  not 
apply  under  the  statutes  of  California,  and  we  here  append  the 
following  notes  and  authorities  as  to  the  practice  in  this  state. 
It  will  be  seen  by  the  current  of  authorities  that  the  action  must 
be  upon  the  original  indebtedness,  and  that  the  mortgage  is  con- 
sidered as  a  mere  security.^*  A  mortgage  is,  therefore,  a  mere 
security  for  the  debt,  and  does  not  pass  the  fee,  nor  give  right 
to  entry.*^  A  mortgage  in  California,  then,  does  not  confer  a 
right  to  the  possession  of  real  property,  except  as  a  result  of 
foreclosure  and  sale.'^"  And  the  vendee  of  the  mortgagor  can 
not  be  ousted  by  a  purchaser  under  the  decree  of  foreclosure  and 
sale,  unless  such  vendee  was  made  a  party  to  the  foreclosure 
suit.'*^  It  shall  not  be  deemed  a  conveyance,  whatever  its  terms, 
so  as  to  enable  the  owner  of  the  mortgage  to  recover  possession 
of  the  real  property,  without  a  foreclosure  and  sale,'^^  t]-,^is  ^p. 
stricting  the  mortgage  to  the  mere  purposes  of  security.''^  The 
worfls  "whatever  its  terms,"  rlo  not  relate  to  stipulations  for 

4fi  l.pvistnn  v.  Swan,  ."^n  Cal.  4.S0. 

4Tr,o(lfr('y  V.  CnUlwell,  .1  Cal.  101. 

48  ^TfAIillan  v.  Riclianls.  9  Cal.  30.'');  70  Am.  Doc.  (in.-;  Tapin  v. 
Domfiiiini.  77  Cal.  P.HP.-.  U  Am.  St.  Rep.  288. 

40Mc-Millan  v.  Kiclianls.  9  Cal.  .m^):  Ilaffley  v.  Maier.  13  id.  13; 
Popart .V  V.  Saw.vor.  17  id.  .'89;  Stewart  v.  Powers.  98  id.  514. 

r.nKidd  v.  Tepple.  22  Cal.  2.55. 

"  TTafTlfty  v.  Maier.  13  Cal.  13. 

(^sCnl.   I'rac.   Act.   §  2(;0;  Code  Civ.   T'ro.,   §  744. 

MMfMillan  v.  Rirliards,  9  Cal.  :w,:,:  70  Am.  Deo.  OI^H:  Crattan  v. 
Wiepins,  23  Cal.  If!;  Diitton  v.  AVarschauer,  21  id.  009;  82  Am.  Dec. 
765;  Skinner  v.  Buok,  20  Cal.  253. 


§§  T:^0-T31  FORMS  of  complaints.  476 

possession  or  sale.''"*  A  deed  ol  trust,  the  trustee  not  being  tlie 
creditor,  but  a  third  party,  given  to  secure  a  note,  and  authoriz- 
ing the  trustee  to  sell  the  land  at  public  auction,  and  execute  to 
the  jnirchaser  a  good  and  sufficient  deed  of  the  same,  upon 
default  in  paying  the  note  or  interest,  as  it  falls  due,  and  out  of 
the  proceeds  to  satisfy  tlie  trust  generally,  and  to  render  the 
surplus  to  the  grantor,  etc.,  is  not  a  mortgage  requiring  judicial 
foreclosure  and  sale.°° 

§  729.  Necessary  averment.  Where  the  plaintiffs  held  cer- 
tain security  on  real  estate  for  the  payment  of  an  indebtedness 
of  M.  to  them,  but  gave  up  and  canceled  such  security  upon  B. 
executing  a  bond  in  their  favor,  the  condition  of  which  was 
that  B.  should  pay  to  the  plaintiffs  such  amount,  not  exceeding 
four  thousand  dollars,  as  should  be  found  due  to  them  from  M. 
after  sale  of  certain  goods,  and  the  winding  up  of  the  accounts 
of  ^L  with  the  plaintiffs,  the  payment  of  which  bond  was 
guaranteed  by  the  defendant  under  the  same  conditions  ex- 
pressed therein,  it  was  held,  in  an  action  on  the  defendant's 
guaranty,  that  the  want  of  an  averment  in  the  complaint  of  the 
Avinding  up  of  the  accounts  of  the  plaintiffs  with  M.,  or  any 
averment  equivalent  thereto,  rendered  the  complaint  sub- 
stantially defective,  and  judgment  was  given  for  the  defendant 
on  demurrer  to  the  complaint.'^^ 

§  730.  Parol  evidence.  Parol  evidence  of  previous  agree- 
ment to  give  a  guaranty,  or  of  knowledge  of  the  relations  be- 
tween the  principal  parties,  is  inadmissible  to  make  that  a  con- 
tinuing guaranty  which  is  not  so  upon  its  face.'^'^  So  to  charge 
one  as  guarantor  who  is  not  embraced  in  the  writing.*^* 

I  731.   On  a  guaranty  of  a  precedent  debt. 

Forin  No.   172. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18.  .,  at 

,  one  A.  B.  was  indebted  to  this  plaintiff  in  the 

fium  of dollars. 

C4  Foparty  v.  Sawyer,  17  Cal.  .589. 

65Kooh  V.  Brifrss.  14  Cal.  2.50;  73  Am.  Deo.  6.51. 

Bfi  Mickle  V.  Sanr-hez.  1  Cal.  200. 

B7  Boston,  eto.,  Class  Co.  v.  IVIoorf'.  119  Mass.  435. 

C8  First  Nat.  Rank  v.  Bennett,  33  Mich.  520. 


47'?  GUARANTIES.  §§  732,  733 

II.  That  on  the day  of  ,  18 . .,  at 

,  the  defendant  made  and  subscribed  a  memo- 
randum in  writing,  of  ^yhich  tlie  following  is  a  copy  [copy  of 
the  guaranty],  and  delivered  the  same  to  the  plaintiif,  whereby 
he  promised  to  the  plaintiff  to  answer  to  him  for  said  debt. 

III.  That  the  plaintiff  duly  performed  all  the  conditions 
thereof  on  his  part. 

IV.  That  the  defendant  has  not  paid  the  same. 

[Demand  of  Judgment.] 

§  732.   Against  suiieties  for  payment  of  rent. 

Form  No.   1/3. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of   ,  18.  .,  at 

,  one  W.  B.  hired  froni  the  plaintiff  for  the  term 

of years  the  [house  No ^  street, 

city  of ,  at  the  annual  rent  of dol- 
lars, payable  monthly]. 

II.  That  [at  the  same  time  and  place]  the  defendant  agreed, 
in  consideration  of  the  letting  of  the  said  premises  to  the  said 
W.  B.,  to  guarantee  the  payment  of  the  said  rent. 

III.  That  the  rent  aforesaid  for  the  month  ending  on  the 

day  of ,  18 .  . ,  amounting  to 

dollars,  has  not  been  paid. 

[If  by  the  terms  of  the  agreement  notice  is  required  to  be 

given  to  the  surety,  add:]     IV.  That  on  the day  of 

,  18.  .,  the  plaintiff  gave  notice  to  the  defendant 

of  the  nonpayment  of  the  said  rent,  and  demanded  payment 
thereof. 

V.  That  he  has  not  paid  the  same.^^ 

[Demand  of  Judgment.] 

§  733.  Guaranty  to  be  in  writing  in  California.  Tlie  foil  own- 
ing provisions  of  the  Civil  C^ode  of  California  cover  so  many 
difiputod  questions,  that  it  is  thought  best  io  insert  tlieni  here. 
Tlie  Code  provides: 

§  2793.  Except  as  prescribed  by  the  next  section,  a  guaranty 
must  be  in  writing,  and  signed  by  the  guarantor;  l)ut  the  writ- 
ing need  not  express  a  consideration. "^ 

60  Tlir-   Kocfuid    count,   is   a    siidicifut    sliilpinonl,   of   r-onsideration. 
Caballen.  v.  Slater,  14  C.  IV  .?o:;. 
«o  A  contract  of  guaranty   is  a  collateral   un<lertakiu«,   and   can 


g  734  FOUMS   OF    COMPLAINTS.  478 

§  \.'Tl)4.  A  promise  to  answer  ior  the  obligation  of  another, 
in  any  of  the  follow iiig  eases,  is  deemed  an  original  obligation 
of  the  promisor,  and  need  not  be  in  writing:  1.  Where  the 
promise  is  made  by  one  who  has  reeeived  property  of  another 
upon  an  undertaking  to  a])ply  it  pursuant  to  such  promise;  or 
by  one  who  has  received  a  discharge  from  an  obligation  in  whole 
or  in  part,  in  consideration  of  such  promise;  2.  Where  the  cred- 
itor parts  with  value,  or  enters  into  an  obligation,  in  considera- 
tion of  the  obligation  in  respect  to  which  the  promise  is  made, 
in  terms  or  under  circumstances  such  as  to  render  the  party 
making  the  pi-omiso  the  principal  debtor,  and  the  person  in 
whose  behalf  it  is  made  his  surety;  3.  Where  the  promise,  being 
for  an  antecedent  obligation  of  another,  is  made  upon  the  con- 
sideration that  the  party  receiving  it  cancels  the  antecedent 
obligation,  accepting  the  new  promise  as  a  substitute  therefor;  or 
upon  the  consideration  that  the  party  receiving  it  release  the 
propeity  of  another  from  a  levy,  or  his  person  from  imprison- 
ment under  an  execution  on  a  judgment  obtained  upon  the  ante- 
cedent obligation;  or  upon  a  consideration  beneficial  to  the 
promisor,  whether  moving  from  either  party  to  the  antecedent 
obligation,  or  from  another  person;  4.  Where  a  factor  under- 
takes, for  a  commission,  to  sell  merchandise,  and  guarantee  the 
sale;  5.  Where  the  holder  of  an  instrument  for  the  payment  of 
money,  upon  which  a  third  person  is  or  may  become  liable  to 
him,  transfers  it  in  payment  of  a  precedent  debt  of  his  own, 
or  for  a  new  consideration,  and  in  connection  with  such  transfer 
enters  into  a  promise  respecting  such  instrument. 

§  734.  Leases.  At  the  time  of  the  execution  of  a  lease  from 
A.  to  B.,  C.  wrote  underneath  it:  '' T  hereby  agree  to  pay  the 
rent  stipulated  above  when  it  shall  become  due,  provided  the 
said  B.  does  not  pay  the  same " —  this  must  he  considered  as 
a  part  of  the  lease  itself,  and  not  within  the  Statute  of  Frauds.*'^ 

not  exist  without  the  presence  of  a  main  or  substantive  liability 
to  Avhich  it  is  collateral.  And  where  there  is  no  primary  liability 
of  a  third  person  to  the  promise,  which  continues  after  the  con- 
tract is  made,  the  contract  can  not  be  one  of  guaranty,  but  is  an 
oiisinal  promise,  which  need  not  be  in  writing.  Kilbride  v.  Moss, 
n.3  Oal.  4.32. 
61  Evoy  V.  Tewksbuiy,  .5  Cal.  285. 


CHAPTEE  VI. 

INSUEANCE. 
§  735.   On  fire  policy  —  by  the  insured. 

Form  No.   174. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  the  defendants  are  a  corporation  duly  created  by  and 
under  the  laws  of  this  state  [or  the  state  of,  etc.],  organized 
pursuant  to  an  act  of  the  legislature  [of  said  state]  entitled 
[title  of  the  act],  passed  [date  of  passage],  and  the  acts  amend- 
ing the  same. 

II.  That  the  plaintiff  [was  the  owner  of,  or]  had  an  interest 

in  a  [dwelling-house,  known  as  No.  200   street, 

in  the  city  of ]?  at  the  time  of  its  insurance  and 

destruction  [or  injury]  by  fire  as  hereinafter  mentioned. 

III.  That  on  the   day  of  ,  18.  .,  at 

,  in  consideration  of  the  payment  by  the  plaintiff 

to  the  defendants  of  the  premium  of dollars,  the 

defendants,  by  their  agents  duly  authorized  thereto,  made  their 
policy  of  insurance  in  writing,  a  copy  of  which  is  annexed  hereto, 
and  made  part  of  this  complaint. 

IV.  That  on  the day  of ,  18.  .,  said 

dwelling-house  and  furniture  were  totally  destroyed  [or  greatly 
damaged,  and  in  part  destroyed]  by  fire. 

V.  That  the  plaintiff's  loss  thereby  was dollars. 

VI.  That  on  the  day  of   ,  18.  .,  he 

furnished  the  defendant  with  proof  of  his  said  loss  and  interest, 
and  otherwise  performed  all  the  conditions  of  said  policy  on 
his  part. 

VTT.  That  the  defendant  has  not  paid  the  said  loss,  nor  any 
part  thereof. 

[Demaxd  of  Judgment.] 
[Annex  a  copy  of  policy.] 


§§  736,  737  FORMS  OF  complaints.  480 

§  736.   The  same,  where  plaintiff  purchased  the  property  after 
Insurance. 

Form  No.  lys. 
[Title.] 

I.  [Allege  incorporation  as  in  last  I'orm.J 

II.  That  [name  of  original  insured]  was  the  owner  of,  or  had 
an  interest  in,  etc.,  etc. 

III.  [The  same  as  in  last  form,  substituting  the  names  of  the 
original  insured,  instead  of  the  words  "  the  plaintiff."] 

IV.  That  on  the   day  of    ,   18.  .,  at 

,  with  the  consent  of  the  defendants,  in  writing, 

on  said  policy,  by  their  said  agents,  the  said  [original  insured] 
sold,  assigned,  and  conveyed  to  the  plaintiff,  his  interest  in 
the  said  [property]  and  in  the  said  policy  of  insurance.  [Con- 
tinue as  in  last  form.]^ 

[Demand  of  Judgment.] 

§   737.   The   same  —  another  form. 

Form  No.   176. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  he  was  the  owner  of  a  [match  factory,  and  the  ma- 
chinery therein],  in    the  town    of   ,  county  of 

,  at  the  time  of  its  insurance  and  destruction  by 

fire,  as  hereinafter  mentioned. 

II.  That  on  the day  of ,  18.  .,  at 

,  in  consideration  of  the  sum  of    

dollars  to  them  paid,  the  defendants  executed  to  the  plaintiff  a 
policy  of  insurance  on  the  said  property,  a  copy  of  which  is 
hereto  annexed  [marked  "Exhibit  A"],  and  made  part  of 
this  complaint. 

III.  That  on  the  day  of ,  18. .,  the 

said  property  was  totally  destroyed  by  fire. 

IV.  That  the  plaintiff's  loss  thereby  amounted  to  more  upon 
each  part  of  the  property  separately  insured,  than  the  amount 
of  such  separate  insurance. 

V.  That  on  the    day  of    ,  18.  .,  he 

furnished  the  defendant  with  proof  of  his  said  loss  and  interest, 
and  otherwise  duly  performed  all  the  conditions  of  the  said 
policy  on  his  part. 

1  As  to  the  form  of  averment  of  an  assignee's  interest  in  the 
Bfubject  insured,  see  Granger  v.  Hoiward  Ins.  Co.,  .5  Wend.  200. 


481  INSUEAXCE.  §§  738,  739 

YI.  That  the  defendant  has  not  paid  the  said  loss,  nor  any 
part  thereof. 

[Demand  of  JuuciiEXT.] 
[Annex  ''Exhibit  A."] 

§   738.   The  same  —  loss  payable  to  mortgagee. 
Form  No.   177 , 

[Title.] 
[Allege  as  in  form  No.  174,  substituting  the  original  insured's 
name  for  the  word  "plaintiff"  down  to  V.] 

V.  That  on  the day  of ,  18.  .,  the  said 

insured  made,  executed,  and  delivered  to  plaintiff  his  mortgage 

on  said  premises,  to  secure  the  sum  of   dollars, 

and  assigned  said  policy  to  plaintiff',  as  further  security,  and 
thereupon  defendant,  at  the  request  of  plaintiff  and  of  the  in- 
sured, indorsed  on  said  policy,  "  loss,  if  any,  payable  to  [plain- 
tiff]." 

VI.  That  said  mortgage  and  the  debt  secured  thereby  is 
wholly  unpaid  and  unsatisfied. 

[Continue  as  in  preceding  form.] 

[Demand  of  Judgment.] 

§  739.  Insurable  interest  —  averment  of.  A  legal  or  equitable 
title  is  not  necessary  to  give  an  insurable  interest  in  property. 
If  one  has  a  right  which  may  be  forced  against  the  property, 
and  which  is  so  connected  with  it  that  injury  thereto  will  neces- 
sarily result  in  loss  to  him,  he  has  an  insurable  interest.^  The 
interest  of  the  insured  is  one  of  the  facts  constituting  the  cause 
of  action,  and  must  be  alleged.^  Alleging  that  the  defendants, 
in  consideration,  etc.,  insured  him  against  loss,  etc.,  on  his 
three-story  and  attic  stone  building,  and  a  frame  one-story 
building  attached,  occupied  by  the  said  insured,  is  a  sufficient 
averment  of  interest,  at  least  on  demurrer.  If  the  averment  is 
too  general,  the  defendant's  remedy  is  by  motion.*  Such  in- 
terest must  be  alleged  not  only  as  to  the  time  the  policy  was 
taken  out,  but  also  as  to  the  time  of  loss.'  An  allegation,  how- 
ever, that  at  the  time  of   insurance,  be,  the  plaintiff,  had   a 

2Kohrbach  v.  Gernianla  Flro  Tna.  Co..  02  N.  Y.  47;  20  Am.  Rep. 
4.-1 :  BOP.  also.  Cal.  Civil  C«jfle,  §S  2.^)46,  25.^8. 

3  2  Crecnl.  on  Ev.,  §8  37(>,  378-381;  rre<Mnan  v.  Insurance  Co., 
38  Barb.  247. 

4  Fowler  v.  N.  Y.   Tndr'innity   InH.  Co.,  23  Barb.   14.3. 
nQnan-ier  v.  Poabody  Ins.  Co..  10  W.  Va.  507;  Aetna  Ins.  Co.  v. 

KlttU'8,  81  Ind.  nn;  St.  Taul,  etc.,  Ins.  Co.  v.  Kelly,  43  Kan.  741; 
Vol.  I— ni 


§74:0  roHMS   OF   CUM  PLAINTS.  483 

chattel  mortgage  on  tlie  ])rc)|iorly,  has  been  held  sufficient,  as 
the  interest  will  be  presumed  to  continue."  An  allegation,  also, 
tbat  tbe  insurance  was  ell'ected  by  plaintiff  on  "his"  building 
is  sullicient  without  setting  out  his  title.'  And  so  of  an  alle- 
gation that  the  defendant  "^insured  plaintiff"  on  a  certain 
amount  of  grain.** 

§  740.  Other  essential  averments  —  loss  —  policy  —  action  by- 
mortgagor.  In  an  action  to  recover  on  an  insurance  policy,  it 
is  essential  to  aver  the  loss,  and  to  show  that  it  occurred  by 
reason  of  a  peril  insured  against.  It  is  not  necessary  to  show 
that  the  loss  did  not  occur  through  a  peril  excepted  from  the 
policy.  Thus  it  is  not  necessary  to  state  that  the  loss  was  not 
caused  by  invasion,  riot,  lightning,  etc.  That  is  a  matter  of 
defense  which  need  not  be  anticipated.''  A  partial  loss  is  re- 
coverable under  an  allegation  of  total  loss.^^  An  insurance 
policy  being  a  contract  of  the  insurer's  dictation,  must  be  con- 
strued most  strongly  against  them.^^  Policies  of  insurance  are 
written  contracts,  to  be  interpreted  by  the  same  rules  which  ap- 
ply to  other  contracts,  and  to  be  enforced  according  to  the  in- 
tention of  the  parties,  and  are  to  be  construed  liberally  in  favor 
of  the  assured. ^^  In  pleading  the  policy,  formerly  it  was  cus- 
tomary to  set  out  the  policy  and  conditions  annexed  at  length. 
The  more  convenient  way  is  to  annex  a  copy  to  the  complaint, 
and  refer  to  it.^^     The  payment  of  the  premium  is  a  condition 

Hardwick  v.  State  Ins.  Co.,  20  Oregr.  547;  Earnmoor  v.  Cal.  Ins. 
Co.,  40  Fed.  Rep.  847;  Dickerman  v.  Vt.  Mut.  Ins.  Co.,  67  Vt.  99. 
CRoussel  V.   St.  Nicholas  Ins.  Co..  41  N.  Y.  Sup.  Ct.  279. 

7  Fowler  v.  N.  Y.  Ind.  Ins.  Co.,  23  Barb.  14,'^;  and  see  People's 
Ins.  Co.  V.  Heart,  24  Ohio  St.  331. 

8  Rising:  Sun  Ins.  Co.  v.  Slaughter,  20  Ind.  520. 

8  Lounsbury  v.  Pro.  Ins.  Co.,  8  Conn.  466;  Rucker  v.  Green,  15 
East,  290;  Hunt  v.  Hudson  Riv.  Ins.  Co.,  2  Duer,  487;  Catlin  v. 
Springfield  Fire  Ins.  Co.,  1  Sumn.  439;  FeiTer  v.  Home  Ins.  Co., 
47  Cal.  416;  Forbes  v.  Am.,  etc.,  Ins.  Co.,  15  Gray,  249;  Blasin- 
game  v.  Home  Ins.  Co.,  75  Cal.  633.  It  is  held  otherwise  in  Texas. 
Phoenix  Ins.  Co.  v.  Boren,  83  Tex.  97. 

10  Peoria  Mar.  &  F.  Ins.  Co.  v.  Whitehill,  25  111.  466. 

n  Bryan  v.  Pealx>dy  Ins.  Co.,  8  W.  Va.  605. 

12  Wells,  Fargo  &  Co.  v.  Pacific  lus.  Co.,  44  Cal.  397;  Foot  v. 
Aetna  Life  Ins.  Cx).,  61  N.  Y.  .571. 

13  Fairbanks  v.  Rloomfield,  2  Duer,  349.  In  Wyoming,  if  the 
rtoelaration  I'ails  to  dosoribe  the  property  insured,  such  defect  is 
not  fured  by  the  presence  of  a  description  in  the  copy  of  the  policy 
whirh  is  annexod  to  the  declaration  as  an  exhibit.  Johnson  v. 
Home  Ins.  Co.,  3  Wy.  140. 


483  INSURAXCE.  §  740a 

precedent  to  the  right  to  recover  lor  the  loss,  and  must  be  al- 
leged.^'* The  acknowledgment  of  the  receipt  of  the  premium  in 
the  policy  may  be  contradicted.^'^  In  an  action  by  the  mort- 
gagor on  a  policy  issued  to  him,  but  on  terms  payable  to  the 
mortgagee,  the  complaint  must  aver  '"  that  the  mortgage  has 
been  paid,"  or  must  join  the  mortgagee  as  a  party.^®  Where 
a  policy  contained  a  provision  that  "  if  the  property  "  insured 
"'  shall  be  sold,"  a  delivery  of  the  said  property  to  a  mortgagee, 
with  the  assent  of  the  insurers,  does  not  avoid  the  poliey.^^ 

§  740a.  The  same  —  continued.  It  is  only  necessar}',  primarily, 
in  an  action  on  an  insurance  policy,  to  allege  the  contract 
of  insurance,  the  happening  of  the  contingency  rendering  the 
insurer  liable  under  the  contract,  and  the  amount  of  indemnity 
to  which  the  insured  is  entitled.  Anything  impeaching  the' 
validity  of  the  contract  should  be  alleged  by  way  of  defense.^^ 
A  complaint  in  an  action  against  an  insurance  company  alleging 
that  the  defendant  insured  certain  property  of  the  plaintiff; 
the  total  destruction  of  the  property  by  fire;  the  loss  incurred; 
that  proof  of  loss  was  received  by  the  company  without  objec- 
tion: that  the  fire  did  not  happen  from  any  cause  mentioned 
in  the  policy  as  relieving  the  company  from  liability,  and  that 
it  occurred  without  fault  of  the  insured,  is  not  open  to  de- 
murrer on  the  ground  of  a  failure  to  allege  performance  of  the 
conditions  of  the  policy  by  the  insured. ^^     The  plaintiff  need 

14  Berjrson  v.  Builders'  Ins.  Co..  38  Cal.  541;  and  see  Carpenter 
v.  Haleomb,  105  Mass.  280. 

15  Id.;  per  contra,  see  Teutonia.  Life  Ins.  Co.  v.  Anderson.  77  III. 
384;  Same  v.  Mueller,  id.  22. 

i«  Ennis  v.  Harmony  Fire  Ins.  Co.,  3  Bosw.  .51(>.  A  fire  policy, 
by  tlie  terms  of  wliirli  the  loss,  if  any,  is  made  payable  to  a  mort- 
frajree  as  Ids  interest  may  appear,  is  a  contract  for  the  benefit 
of  sucli  mortpaRoe,  and  lie,  or  a  person  to  whom  lie  hns  assipned 
the  claim  after  a  cause  of  action  has  accrued,  is  entitled  to  recover 
in  his  own  name  the  full  amount  of  the  insurance,  not  exceedinc: 
the  amount  due  upon  tlie  mortpape.  Maxcy  v.  New  IIam])shire 
I^ire  Ins.  Co..  .54  Minn.  272;  40  Am.  St.  Rep.  325;  Meriden  Sav. 
F.;itil<  V.  Insur.'incc  Co..  .50  Conn.  300;  ITastin.es  v.  Insurance  Co..  73 
\.  Y.  HI:  Till.y  v.  Insurance  Co.,  80  Vn.  811;  Ilammel  v.  Queen 
Ins.  Co.,  .50  Wis.  240. 

17  Wasliinpton  Ins.  Co.  v.  Hayes.  17  ()\\\o  St.  4."2:  03  \m.  Dec. 
028.    Wl:en  a  policy  is  avoided  as  to  rcniovcMl  poods,   see  Id. 

i«  Standard,  etc.,  Ins.  Co.  v.  Fricilmtliiil,  1  Col.  App.  5. 

if»  Tabor  v.  doss,  etc.,  Mfp.  <"<>..  11  Col.  410.  Fnder  the  forms 
'  f  plcadinp  prescribed  by  the  .Mab.im.-i  Code  (§  2070,  Form  No.  10), 


§  740a  roiiAis  of  complai^s^ts.  -iSi 

not  allege  in  his  cH)inplaiuL  the  terms  oi'  llii'  ajipliealiun  for  iii- 
suranee,  wJieii  the  applieuliou  was  verbal,  and  was  not  required 
by  the  provisions  oi  the  poliey  tt)  Ije  in  writing.^  An  allega- 
tion "that  the  }»laintilV  duly  peri'ormed  all  the  coiulilions  oi  the 
mnd  contraet  ot  insurance  on  his  part,"  is  a  siilUcient  allegation 
of  a  notiee  to  the  company  oi*  the  lire  and  loss,  as  required  Ijy 
the  policy.-'  The  plaintili  must  aver  and  prove  the  amount 
of  the  loss.-^  And  where  preliminary  proot  oi  loss  is  required 
by  the  policy,  the  assured  must  allege  and  prove  that  the  proof 
has  been  made,  or  that  the  requirement  has  been  vvaived.^^  So 
where  a  fire  policy  provides  for  payment  within  a  specified  num- 
ber of  days  after  proof  and  ascertainment  of  loss,  it  is  essential 
to  show  in  the  complaint  that  such  time  had  expired  before 
suit.  And  an  allegation  that  the  plaintiff  had  duly  performed 
all  conditions  on  his  part  will  not  aid  the  complaint,  as  respects 
ihe  lapse  of  the  requisite  period.^^  A  complaint  alleging  that 
the  insured  was  the  owner  of  the  property  at  the  time  of  the 
insurance,  and  at  the  time  of  the  fire,  its  value  at  those  times, 
and  also  that  it  Avas  totally  destroyed  by  fire,  sufficiently  show^s 
the  damage  sustained  by  the  insured  by  reason  of  the  fire.^ 
"Where  the  policy  provides  for  submission  to  arbitration  as  a 
condition  precedent  to  the  right  of  the  insured  to  recover  for 
a  loss,  the  complaint  in  an  action  on  the  policy  must  specifically 
allege  the  award,  or  show  that  it  was  prevented  by  the  fraudu- 
lent conduct  of  the  insurer.  And  an  allegation  that  the  plain- 
tiff has  duly  performed  and  kept  all  the  conditions  of  the  policy 

it  is  not  necessary  to  allege  an  insurable  interest,  or  that  tho  plaintiff 
is  entitled  to  assert  such  interest.    Com.  Fire  Ins.   Co.   v.  Capital 
City  Ins.  Co.,  81  Ala.  320. 
20Tischler  v.   Col.,  etc..  Ins.   Co..   00  Cal.   178. 

21  Emery  v.  Svea  Fire  Ins.  Co.,  88  Cal.  300;  Eichards  v.  Travelers' 
Ins.  Co.,  89  id.  170. 

22  Michael  v.  Ins.  Co.,  17  Mo.  App.  23:  Rnmmors  v.  Home  Ins.  Co., 
53  id.  .-21. 

23  McCormack  v.  N.  British  Ins.  Co..  78  Cal.  4fiS.  In  an  action 
on  a  fire  policy  the  plaintiff  can  not  plead  that  he  furnished  the 
required  proofs  of  loss,  and  recover  on  evidence  that  such  require- 
ment had  been  waived.  Building  Ass'n  v.  Insurance  Co.,  29  Oreg. 
569;  and  see  Insurance  Co.  v.  Thorp.  48  Kan.  2.39;  Insurance  Co. 
V.  Capehart,  108  Tnd.  270;  but  see  McCullonglV  v.  Insurance  Co., 
113  Mo.  GOO;  McCnire  v.  Insurance  Co.,  40  N.  Y.  ,300,  .308. 

24  Cowan  V.  Phoenix  Ins.  Co.,  78  Cal.  181 ;  First  Nat.  Bank  v. 
Insurance  Co..  H  S.   Dak.  424. 

25  Blasingame  v.  Home  Ins.  Co..  7.5  Cal.  033. 


4:65  INSUEA^TC'E.  §§  741-744 

ib  not  suffieient.^^  Where  the  policy  provides  that  the  amount 
to  be  paid  thereunder  should  not  exceed  the  proportion  which 
the  amount  insured  under  the  policy  bears  to  all  the  insurance 
upon  the  property,  the  complaint  should  show  that  there  is  no 
otlier  insurance  upon  the  property,  or  in  case  there  is  other  in- 
surance, should  give  the  amount  thereof.^"^  In  an  action  upon 
a  policy  containing  a  clause  making  the  insurer  lialjle  for  losses 
''  for  which  insurers  are  liable  by  the  rules  and  customs  of  in- 
surance "  in  a  particular  place,  the  complaint  must  allege  the 
local  custom  by  which  it  is  sought  to  hold  the  insurer  liable.^^ 
Xonpayment  must  be  alleged.^^  xVnd  a  complaint  in  an  action 
on  an  insurance  policy,  which  does  not  allege  that  there  was  any 
default  in  payment  by  the  defendant  of  any  sum  due  on  the 
policy,  does  not  state  a  cause  of  action.^*^ 

§  741.  Agent.  An  agent,  to  effect  an  insurance,  who  retains 
the  policy,  has  the  authority  to  collect  it  in  case  of  loss,  and  the 
presumption  is  that  he  did  retain  it,  especially  as  he  proceeded 
to  collect  the  money.^^ 

§  742.  Double  insurance.  A  policy  forfeitable  if  the  assured 
shall  make  any  other  insurance  upon  the  property,  is  not  for- 
feited by  his  taking  a  second  but  invalid  policy  thereon.^^ 

§  743.  Exceptions  in  policy.  A  provision  in  a  policy  of  fire 
insurance  exonerating  the  company  from  loss  by  fire  which 
should  happen  by  explosion,  must  be  taken  to  include  an  ex- 
]»losion  of  a  steam-engine,  insured  by  the  policy,  as  w^ell  as  any 
external  explosion.^^ 

§  744.  Parol  policy.  In  the  absence  of  a  statutory  prohibi- 
iiou,  a  policy  of  insurance  may  be  made  or  changed  by  parol, 

20  Carroll  v.  Girard  Fire  Ins.  Co.,  72  Cal.  297;  Mosness  v.  Insur- 
ance Co.,  50  Minn.  341;  but  see  Tilly  v.  Conn.  Fire  Ins.  Co.,  86  Va. 
811. 

27  Goats  V.  West  Coast,  etc.,  Ins.  Co.,  4  Wasli.  St.  375. 

2s  Miller  v.  Cal.  Ins.  Co..  7(>  Cal.  145;  0  Am.  St.  1!.  i).  184. 

-'»  Ulcliards  v.  Travelers'  Ins.  Co..  80  Cal.  .50.5. 

3or;ill  V.  .\etna.  etc.,  Ins.  Co..  31  X.  Y.  Su)))).  485;  iMit  compare 
Hanover  Fire  Ins.  Co.  v.   Scbellak,  35  Neb.  701. 

31  De  Ho  V.   Cordcs,  4  C;il.    117. 

32Tbomas  v.  Buildprs'  Mutual  Fire  Ins.  Co.,  110  .Mass.  121;  .30 
Am.  Hep.  317;  soe  Cal.  Civil  Code.  S§  2C41,  2CA2. 

33  Ilayward  v.  Liverpool  &  L.  Fire  &-  I>ifc  "Ins.  Co..  5  Abb.  Pr. 
(N.  S.)  142;  Brenner  v.  Insurance  Co..  51  Cal.  loi;  lii  Am.  Bep.  703. 


^^  7-15-747  FORMS    OV   CUMI'LAIXTS.  486 

and  the  J'acl  Unit  a  policy  is  written  does  not  prevent  its  change 
or  enlargement  or  continuance  by  subsequent  parol  agreement.''* 

§  745.  Representations.'  A  representation  is  a  statement  in 
regard  lo  a  material  fact  made  by  the  applicant  for  insurance 
to  the  insurer,  witli  reference  to  a  proposed  contract  of  insur- 
ance. They  are  not  part  of  the  contract,  but  merely  collateral 
to  it.  It  is  suthcient  if  representations  are  substantially  true, 
while  warranties  must  be  strictly  complied  witli.^'"' 

§  746.  Reinsurance.  'J'liere  is  no  privity  between  the  one 
originally  insured  and  the  reinsurer,  and  the  liability  over  of 
the  reinsurer  is  solely  to  the  reinsured.^"  But  where  judgment 
is  rendered  against  the  original  insurer,  and  he  has  contested 
the  suit  with  the  advice  or  acquiescence  and  for  the  Ijcnefit  of 
the  reinsured,  the  latter  will  be  bound  Ijy  the  judgment,  and 
for  the  costs  and  expenses  incurred  in  the  defense.^'^ 

§  747.  Warranties,  misrepresentation,  concealment,  etc.  Un- 
der the  provisions  of  the  Georgia  Code,  application  for  insur- 
ance must  not  only  be  made  in  the  utmost  good  faith,  but  the 
representations  contained  therein  are  covenanted  to  be  true. 
Xot  that  they  are  warranties  so  as  to  vacate  the  policy,  if  any 
of  them,  whether  material  or  not,  are  not  true;  but  any  variation 
in  them  from  what  is  true,  where})y  the  nature  or  extent  or 
character  of  the  risk  is  changed,  will,  if  the  policy  makes  them 
the  basis  of  the  contract  of  assurance,  avoid  the  policy,  whether 
they  are  or  are  not  willfully  and  fraudulently  made.^^  But  a 
provision  in  a  policy  of  insurance,  that  the  application  for  in- 
surance shall  be  considered  as  a  warranty,  and  that  if  the 
property  insured  is  overvalued  in  it,  the  policy  shall  be  void, 

34  Westchester  Fire  Ins.  Co.  v.  Earle.  .^3  Mich.  14.3.  A  parol 
contract  made  by  an  insurance  coinpany  to  issue  a  fire  policy  is 
valid,  and  may  be  enforced  by  compelling  a  specific  performance 
by  tlie  company,  or  by  an  action  for  a  ])roach  of  tlie  agreement. 
Gold  r.  8nn  Ins.  Co..  7^  Cal.  21  n. 

SfiBuford  V.  N.  Y.  Life  Ins.  Co.,  .">  Ores.  ?,?A\  IIij?bPO  v.  Gunrdiau. 
etc.,  Ins.   Co.,  e^a  Barb.  462. 

30  Stron.i,'  V.  Phoenix  Ins.  Co..  62  Mo.  289:  21  Am.  Rep.  417. 

3T  Strong  V.  Phoenix  Ins.  Co..  02  Mo.  280;  21  Am.  Rep.  417;  soe 
Cal.  Civil  Code.  S§  2n4r>-264r>. 

35  Southern  Life  Ins.  (^o.  v.  Wilidnson,  .53  Ga.  h'65;  see,  also, 
Cal.  Civil  Code,  §  2.")ni  ct  scq:  also  §  2603  et  scq;  Higbee  v.  Guar- 
dian, etc.,  Ins.  Co.,  66  Barb.  462. 


487  IKSURANCE.  §§  748-750 

applies  only  where  the  statement  as  to  value  is  iuteutioiially 
false.  So  also  where  the  policy  provides  that  all  fraud,  or  at- 
tempt at  fraud,  by  false  swearing  as  to  loss,  shall  cause  a  for- 
feiture of  all  claim  under  the  policy,  a  wrongful  or  intentional 
false  swearing  is  intended,  and  not  a  mere  discrepancy  or  inno- 
.cent  error.  And  whether  fraud  is  to  be  inferred  from  an  ex- 
cessive statement  of  the  value  of  the  property  in  the  original 
application,  or  of  the  loss  in  the  preliminary  proofs,  is  a  ques- 
tion of  fact;  and  in  neither  case  does  a  legal  presumption  of 
fraud  arise,  nor  is  the  burden  cast  upon  the  assured  to  establish 
that  his  statement  was  not  intentionally  ialse.^^ 

§  748.  Wagering  policies.  Policies  execvited  by  w'ay  of  gam- 
ing or  wagering,  or  where  the  policy  stipulates  for  the  payment 
of  the  loss  whether  the  insured  has  any  interest  or  not,  or  that 
the  policy  shall  be  received  as  proof  of  such  interest,  are  void.'*^ 
Insurance  of  lottery,  or  lottery  prize,  is  unauthorized.*^ 

§   749.    Allegation    of   renewal. 

Form  No.   178. 

That  on  the  day  of ,  18.  . .,  at 

,  the  defendants,  by  their  agents  duly  authorized 

thereto,  in  consideration  of dollars  to  them  paid 

by  the  plaintiff,  executed  and  delivered  to  this  plaintiff  their 
certificate  of  renewal  of  said  policy,  of  which  the  following  is 
a  copy,  annexed  as  a  part  of  this  complaint. 

§  750.  By  insured,  on  agreement  to  insure,  policy  not  de- 
livered. 

Form  No.   179. 

[Title.] 
The  plaintiff  complains,  and  alleges: 
T.  [Incorporation  of  defendants,  as  in  form  "NTo.  174.] 

II.  That  on  and  before  the day  of ,  18.  ., 

the  plaintiff  applied  to  A.  B.,  w^ho  was  then  and  there  the  duly 

39Helblnp  v.  Svea  Ins.  Co.,  ii4  Cal.  l."»0:  .3."  Am.  Rep.  72.  In 
fountlnfr  on  an  insurance  policy  it  is  not  necessary  to  aver  per- 
formance, nor  the  tnitli  of  any  affirmative  w:iiTanty  in  fracscnfi 
contained  in  tlie  application,  nor  to  set  forth  sncli  warranties. 
Cowan  v.  Plioenix  Ins.  Co..  7S  Cal.  1S1. 

4'"'  Cal.  Civil  Code.  §  2.''..'W.  An  allegation  by  the  plaintiff  that  the 
policy  in  suit  was  not  speculative,  without  affirmatively  settinpr  out 
nn  insuralilo  interest,  was  held  sufficient,  after  verdict.  Kentucky, 
etc.,  Ins.  To.  V.  TTamlltnn.  C?,  Fed.  Kep.  0.3. 

41  Cnl.  Civil  Code,  §  2.^>32. 


^  750  FORMS    OV   CUMl'l.AlNT.S.  488 

auUiorizcd  ;igonl  l\)r  tlio  deroiulantt!,  I'ur  iiit?uninee  against  loss 
or  damayo  by  lire  upon  a  corlain  stock  of  merchandise,  the 
jtroi>erty  of  said  pUiintill',  consisting  of  [describe  it],  contained 
in  a  buUdiiig  occii]»ied  by  tlie  j)Uiiiiliir  Tor  [state  \vlial|,  in  said 

town  oi" And  the  dei'eiuhiiits,  by  their  said  agent, 

then  and  tliere  agreed  to  become  an  insurer  to  the  pkiintiir  on 

the  said  stock  for  three  months  from  that  (hiy,  for 

dolhirs,  at  a  premium  of ,  and  that  the  said  de- 
fendants would  execute  and  deliver  to  the  plaintiff  a  2)oIicy  of 
insurance  in  the  usual  form  of  policies  issued  by  them,  for  the 

sum  of   dollars,  for  the  term  of  three  months 

from  the  said  day. 

III.  That  the  plaintiff  then  and  there  paid  to  the  defendant 
said  premium,  to-wit, dollars. 

IV.  That  it  was  then  and  there  agreed  between  the  plaintiff 
and  the  defendants,  that  the  said  insurance  should  be  binding 
en  them  for  the  term  of  three  months  from  the  time  of  the 
receipt  of  the  said  premium,  for  the  sum  of dol- 
lars; and  the  said  defendants  then  and  there,  in  consideration 
of  the  premises,  agreed  with  the  plaintiff,  to  execute  and  de- 
liver to  him,  in  a  reasonable  and  convenient  time,  a  policy,  in 
the  usual  form  of  policies  issued  by  said  company,  insuring  the 

said  stock  of  goods  in  the  sum  of dollars  against 

loss  and  damage  by  fire,  the  insurance  to  commence  at  the  time 
of  the  receipt  of  the  said  premium,  and  to  continue  for  the 
said  term  of  three  months. 

V.  That  the  defendants,  1)y  a  policy  of  insurance  issued  in 
their  usual  form,  among  other  things  did  promise  and  agree 
[here  set  out  the  legal  effect  of  the  contomplat<^d  policy.] 

VI.  That  after  the  insurance  so  made,  and  after  the  said 
promise  to  execute  and  deliver  a  policy  in  conformity  thereto, 
and  within  the  said  term  of  three  months,  for  which  the  said 

plaintiff  was  so  insured,  to-wit,  on  the day  of , 

18.  .,  the  said  stock  of  merchandise  in  the  said  building  men- 
tioned and  intended  to  he  so  insured,  was  totally  destroyed  by 
fire. 

VII.  That  the  plaintiff  duly  fulfilled  all  the  conditions  of  said 

agreement  and  insurance  on  his  part,  and  that  more  than 

days  [or  otherwise,  as  required  by  the  policy]  l)ofore  the  com- 
mencement  of  this    action,    to-wit,    on    the    dav    of 

1 8 ...  at he  irave  to  the  defendants 


•iiiy  INSUKANCE.  §  751 

due  notice  and  proof  of  the  loss  as  aforesaid,  and  demanded 

payment  of  the  said  sum  of dollars. 

VIII.  That  the  defendant  has  not  paid  the  same,  nor  any 
part  thereof. 

[Demaxd  of  Judgment.]  ^ 

§  751.  Action  by  assignee.  In  an  action  on  a  policy  of  lire 
insurance,  the  interest  of  the  assignee  must  be  stated  in  the 
complaint,  to  make  out  a  cause  of  action.*^  Where  a  com- 
plaint by  the  assignee  of  a  fire  policy  averred  an  insurance  of 
assignor  on  his  building,  that  the  policy  was  duly  assigned  with 
the  consent  of  the  insurers,  that  the  plaintiff,  at  the  time  of  the 
loss,  was  the  lawful  owner  of  the  policy  and  of  the  claim  against 
the  insurers  by  reason  of  the  policy  and  loss,  and  he  made  a 
demand  of  payment  accompanied  with  the  written  assent  of  the 
person  to  whom  the  original  assured  had,  after  the  loss,  assigned 
all  his  property,  it  was  held  bad  on  general  demurrer,  as  not 
showing  any  interest  of  the  plaintiff  or  his  assignor  in  the  sub- 
ject insured.^  The  assignee  of  a  policy  of  insurance  takes  it 
subject  to  all  equities.^^  An  assignment  of  a  policy  of  insur- 
ance upon  a  stock  of  goods,  effected  in  the  name  of  the  assignor, 
made  as  collateral  security  for  a  debt,  with  an  agreement  that 
in  case  of  loss  by  fire,  the  assignee  shall  collect  the  money  and 
pay  the  debt,  attaches  in  equity  as  a  lien  upon  the  amount  due 
on  the  policy  to  the  extent  of  the  debt,  as  soon  as  the  loss 
occurs.'*^ 

■»2  Of  the  proper  form  of  action  to  recoTer  on  an  executory  agree- 
ment to  issue  an  insurance  policy,  see  Post  v.  Aetna  Ins.  Co.,  43 
Rarl).  3.51.  For  a  form  of  complaint,  see  Rocliwell  v.  Hartford 
Fire  Ins.  Oo.,  4  Abb.  Pr.  179.  A  complaint  in  an  action  for  the 
breach  of  an  afrreoment  by  the  dofendant  to  renew  a  policy  of 
fire  insurance,  settinjr  forth  the  date  and  amount  of  the  original 
policy,  and  tlie  property  insm-od  and  its  value,  and  allegincr  that 
the  contract  was  for  a  renewal  of  that  policy  upon  the  same  prop- 
erty, and  for  a  like  amount,  and  was  founded  upon  a  vahiable 
consideration,  and  further  alleging  a  broach  of  tho  contract  by  the 
defendant,  nnd  the  consequent  damage  to  flie  plaintiff,  was  held 
sufficient.  Cold  v.  Sun  Insurance  Co.,  1?,  Pal.  210;  and  see  Schwahn 
V.  Michigan,  etc..  Ins.  Co.,  sn  Wis.  S4. 

43  rjr.nnger  v.   Howard   Fire  Ins.   Co.,  r>  Wend.  202. 

44  Fowler  v.  N.  V.  Indeni.  Ins.  Co..  22  X.  Y.   122. 
4."'Winslow  V.  X.nsf)".  113  Mass.  414. 

4«  Blbend  v.  L.  F.  &  L.  Ins.  Co.,  30  Cal.  78. 

62 


§§  753,  753  I'OliMS    Ol'    COMI'LAIATS.  490 

§  752.  Notice  of  loss.  H  tliu  uolice  alleged  states  the 
twonty-l'ourtli  of  May,  the  plaintiirs  were  not  preeluded  from 
tallowing  ou  the  trial  that  the  proper  notice  was  given  on  the 
morning  of  the  twenty-lirst.'*'^ 

§   753.   By  executor  on  life  policy. 

Form  No.   i8o. 

[Title.] 
The  plaintilf  complains,  and  alleges: 

I.  [Allege  incorporation  as  in  form  No.  174.] 

II.  That   on  the    day  of    18..,   at 

,  the  defendant,  in  consideration  of  the  [annual, 

semi-annual,   or  otherwise]    payment   by   one  A.   B.   to   it,   of 

dollars,  made  their  policy  of  insurance  in  writing, 

of  which  a  copy  is  hereto  annexed,  marked  "Exhibit  A,"  and 
made  part  of  this  complaint,  and  thereby  insured  the  life  of 
said  A.  B.  in  the  sum  of dollars. 

III.  That  on  the   day  of   ,  18.  .,  at 

,  the  said  A.  B.  died. 

lY.  That  on  the   day  of   ,  18 .  . ,  at 

,  said  A.  B.  left  a  will,  by  which  the  plaintiff  was 

appointed  the  sole  executor  thereof  [or  this  plaintiff  and  C.  D. 
wore  appointed  executors  thereof]. 

V.  That  on  the    day  of    ,   18..,   said 

will  was  duly  proved  and  admitted  to  probate  in  the  Probate 

Court  of  the  county  of ,  and  letters  testamentary 

thereupon  were  thereafter  issued  and  granted  to  the  plaintiff, 
as  sole  executor  [or  otherwise],  by  the  Probate  Court  of  said 
county;  and  this  plaintiff  thereupon  duly  qualified  as  such  execu- 
tor, and  entered  upon  the  discharge  of  the  duties  of  his  said 
office. 

VI.  That  on  the   day  of   ,18...  the 

plaintiff  furnished  the  defendant  with  proof  of  the  death  of  the 
baid  A.  B.,  and  the  said  A.  B.  and  the  plaintiff  each  duly  per- 
formed all  the  conditions  of  sairl  insurance  on  their  part. 

YII.  That  the  defonrlar-t  has  not  pnifl  the  same,  and  the  said 
sum  is  now  due  thereon  from  the  defendants  to  the  plaintiff, 
as  such  executor. 

[Dem^akd  of  Judgment.] 

47  Hovpy  V.  Amprioan  Mntnal  Ins.  Co..  2  Drier.  ^f>4.  As  to  when 
thf  insurer  is  oxonerated  liv  failure  to  prive  uotire  of  loss,  prelimi- 
nary proofs,  otc,  Sep  Cal.  Civil  Code.   §§  2633-2637. 


491  INSUKANCE,  §§  754,  Toia 

§  754.  Application.  A  paper  attached  to  the  application,  with 
the  heading  "  Questions  to  be  answered  by  the  medical  examiuer 
for  the  company/'  is  not  to  be  deemed  the  application  or  a 
part  of  the  application;  and  that  statements  made  by  the  appli- 
cant to  the  medical  examiner,  in  answer  to  the  questions  in  that 
paper,  were  not  warranties  within  the  meaning  of  the  policy.^** 
Incorrect  statements  by  the  applicant  for  a  policy  of  life  in- 
surance, in  answer  to  a  question  by  the  examining  physician, 
will  not  be  deemed  such  a  misrepresentation  as  to  avoid  the 
policy  when  it  appears  that  the  physician's  report  as  to  the 
applicant's  condition,  and  not  the  statements  of  the  applicant 
himself,  was  relied  upon  by  the  company. ^^ 

§  754a.  Averments.  A  complaint  on  a  life  policy,  which  con- 
tains no  allegation  that  the  policy  is  unpaid,  is  fatally  defective, 
and  is  not  cured  by  a  verdict  in  favor  of  the  plaintiff.^''  The 
complaint  must  aver  the  loss,  and  that  it  occurred  by  reason 
of  a  peril  insured  against,  but  need  not  contain  allegations  for 
the  purpose  of  meeting  or  cutting  off  a  defense,  nor  aver  the 
performance  of  conditions  subsequent,  nor  negative  prohibited 
acts,  nor  deny  that  the  loss  occurred  from  excepted  risks.^^  An 
allegation  in  the  complaint  that  the  deceased  "complied  with 
the  terms  of  said  agreement  so  far  as  the  same  were  to  be  com- 
plied with  by  him,"  is  not  equivalent  to  alleging  that  the  de- 
ceased "duly  performed  all  the  terms  and  conditions  of  the 
policy,"  so  as  to  render  inadmissible  under  the  complaint  evi- 
dence that  the  defendant  waived  the  condition  in  the  policy 
that  it  should  become  forfeited  if  the  deceased  should  fail  to 
pay  any  installment  of  the  premium  the  day  when  payable.^^ 
The  general  rules  of  pleading  apply  in  an  action  upon  a  life 
policy  issued  by  an  association  doing  business  under  the  mutual 
assessment  plan,  and  the  plaintiff  in  such  action,  as  in  other 

4RHIgbee  v.   r.nardian,  etc.   Ins.   Co..   00  Barb.  402. 

40Tf1.  As  to  wlien  the  apiilir-atinn  will  l)o  held  to  bo  a  part  of 
the  policy,   ami  what  constitutes  a  warranty,   see  same  case. 

Miiichards  v.  Ti-avelers'  Ins.  Co.,  80  Cal.  r»0.5. 

51  Dennis  v.  Union  Mutual  Life  In.s.  Co..  84  Cal.  ."0:  and  see 
Tx)ndon.  etc.,  Ins.  Co.  v.  Cnmk.  ni  Tenn.  370.  Nor  need  the  appHra- 
tlon  for  Insurance  bo  sot  out  in  tho  oomplaint.  Brltt  v.  Life  Ins. 
Co..  105  N.  C.  17.^):  Kniprhts  of  Honor  v.  Wollsrhlager.  22  Col.  21.^; 
Life  Ins.  Co.  v.  Wih-r.  100  Tnd.  02:  I-ifo  Ins.  Co.  v.  Roffors.  119  111. 
474. 

.'■2De  Freoe  v.  National  Life  Ins.  Co.,  10  N.  Y.  Supp.  8. 


gg  755,  750  loitAis  OF  comtlajnts.  4'j2 

cases,  must  show  by  pi'Dpcr  avt'niR'nl  his  true  cause  of  action, 
aud  the  relief  to  whieli  Jie  is  eutitied.  Tlie  conii)Uunt  must 
allege  that  an  assessment  w(is  made  and  collected,  and  what  was 
the  amount  thereof,  or  lliat  it  was  demanded  and  refused.'*^  But 
it  is  not  necessary  to  aver  in  the  complaint  the  number  of  the 
members  of  the  association  against  whom  assessments  might  be 
made.'^'*  And  where  the  contract  stipulates  that  proofs  of 
death  shall  be  furnished  to  the  secretary  of  the  association,  the 
complaint  is  sufficient  if  it  shows  that  such  proofs  were  fur- 
nished  to  the  association,  and  it  is  not  necessary  to  aver  therein 
a  demand  before  suit  brought.^'* 

§  755.  Conflict  of  laws.  Where  a  policy  of  life  insurance  was 
made  by  a  New  York  company,  with  a  condition  that  it  should 
not  become  valid  until  countersigned  by  their  agent  at  Chicago, 
and  the  premium  paid,  and  the  condition  complied  with  in 
Chicago,  it  was  held  that  the  law  of  Illinois  as  to  assignment 
of  the  policy  prevailed,  and  that  such  an  assignment  by  a  mar- 
ried woman  by  way  of  pledge  was  good  in  equity.^^ 

§  756.  Construction  of  instruments  and  statutes.  A  policy  of 
insurance  on  the  life  of  a  husband  was  made  payable  to  the  wife, 
her  executors,  administrators  or  assigns,  for  her  sole  use,  and 
in  case  of  her  death  before  his,  to  be  paid  to  her  children.  A 
statute  authorized  a  husband  to  effect  such  an  insurance,  and 
protected  it  from  his  creditors.  The  wife  assigned  the  policy 
for  value,  and  died  before  her  husband.  In  an  action  thereon, 
it  was  held  that  the  policy  was  payable  to  the  children,  not  to 
the  assignee,  in  the  event  which  had  happened.'^'^ 

53Dearclorf  v.  Guaranty,  etc.,  Assoc,  89  Cal.  f>99;  and  to  same 
effect,  see  Martin  v.  Association,  4fi  Hun.  420;  Meyers  v.  United 
Life,  etc.,  Assoc,  17  N.  Y.  Supp.  727. 

M  Elkhart  Mutual  Aid,  etc.,  Assoc,  v.  Hou.chton,  103  Ind.  28(3; 
5.3  Am.  Ttep.  514;  but  see  Mutual  Accident  Assoc  v.  Tussle,  138 
111.  428. 

•'"'•''j  Excelsior,  etc.  Assoc  v.  Kiddle  01  Tnd.  84.  See  further  as 
to  sufficiency  of  the  complaint  in  such  action.  Rebut  v.  Legion  of 
tlie  West,  90  Cal.  001 ;  Curtis  v.  Mutual  Benefit  L.  Co.,  48  Conn.  98; 
O'Brien  v.  Home  Benefit  Soc.  40  Hun,  420;  Suppiger  v.  Mutual 
Benefit  Assoc,  20  111.  App.  595. 

M  Pomeroy  v.  Manhattan  Life  Ins.  Co.,  40  111.  398. 

'•'  Connecticut  Mut.  Life  Ins.  Co.  v.  Burroughs.  34  Conn.  305; 
91  Am.  Dec  725. 


493  INSUKAXCE.  §§  757,  758 

S  757.  Suicide.  Life  insurauce  policies  of  the  present  day 
generally  contain  a  provision,  that  in  case  the  insured  should 
''  die  by  his  own  hand  or  act,  the  policy  shall  be  void."  If 
death  occurs  in  such  a  manner,  it  is  held  that  this  proviso  would 
not  prevent  a  recovery  if  the  insured  killed  himself  in  a  fit  of 
insanity,  which  overpowered  his  consciousness,  reason,  and  will; 
that  it  is  incumbent  upon  the  plaintifi:  to  show  that  the  insured 
was  insane  when  the  act  of  self-destruction  was  coumiitted; 
proof  merely  that  he  was  insane  at  times  would  not  be  sufficient; 
that  insanity  could  not  be  inferred  from  the  fact  that  the  insured 
destroyed  his  own  life.^**  In  an  action  on  a  policy  containing 
such  a  provision,  papers  offered  for  the  purpose  of  showing  com- 
pliance with  the  requirements  of  the  policy  as  to  preliminary 
proof  of  death  are  prima  facie  evidence  against  the  insured  of 
the  facts  recited  therein,  including  the  manner  of  the  insured's 
death,  even  though  such  recital  show  a  death  by  suicide.^^ 
When  a  policy  of  life  insurance  contains  a  provision  that  the 
company  does  not  assume  the  risk  of  self-destruction  of  the 
insured  person,  it  is  not  incumbent  upon  the  plaintiff  to  plead 
or  prove  that  the  insured  person  had  not  committed  self-destruc- 
tion, but  the  burden  rests  upon  the  insurance  company  to 
plead  and  prove  such  self-destruction  as  matter  of  defense.^^ 

§   758.   By  a  wife,  partner,  or  creditor  of  the  insured. 

Form  No.   i8i. 

[Title.] 

The  plaintiflP  complains,  and  alleges: 

I.   That  on  the    day  of    ,   18..,   at 

,  the  defendant,  in  consideration  of  the  [annual, 

or  otherwise]  payment  to  it  of dollars,  executed 

to  the  plaintiff  a  policy  of  insurance  on  the  life  of  [her  husband] 
A.  B.,  of  which  a  copy  is  hereto  annexed,  and  made  a  part 
of  this  complaint,  and  marked  "  Exhibit  A." 

TT.  That  the  plaintiff  had  a  valuable  interest  in  the  life  of  the 
said  A.  B.  at  the  time  of  his  death,  and  at  the  time  of  effecting 
the  pnid   incnrance    T'-'tnte   pntiire   of  inlorest]. 

RR  Knickprlioflcer  Life  Ins.  Co.  v.  Ppters.  42  IMd.  414;  see  ISTerritt 
V.  Cotton  States  Life  Tns.  Co..  !'>.'►  Ca.  lO.*^;  nalliaway's  Adm'r  v. 
Nat.  Life  Tns.  Co.,  48  Vt.  .^^'1. 

noWaltlior  v.  Mntnal  Tns.  Co.,  0.^>  Cal.  417. 

eoponnis  v.  T'liion  Mut.  Life  Tns.  Co.,  84  Cal.  r>70:  IMiiliial  Life 
Ins.  Co.  V.  T.onbrie,  71  T-^'d.  Rep.  •84.'?;  18  C.  C.  App.  332. 


§  759.  7liO  FOltMS    Ol-    (OM PLAINTS.  494 

III.  That   on   the   (hiy  ol'   ,  18..,  at 

,  tlie  said  A.  li.  died. 

IV.  Tliat  on  the   (hiy  of ,  18.  .,  the 

plaint itV  rnrnislied  tiie  det'endant  with  proot'  of  the  death  of 
the  said  A.  li.,  and  othorwiso  performed  all  the  conditions  of 
the  said  policy  on  [herj  part. 

V.  That  the  defendant  has  not  paid  the  said  sum,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 
[Annex  a  copy  of  policy,  marked  "  Exhibit  A."] 

§   759.   By  assignee  in  trust  for  wife  of  insured. 

Form  No.   182. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  [Allege  incorporation  as  in  form  No.  174.] 

II.  [Same  as  in  form  No.  180.] 

III.  That  on  the  day  of ,  18. .,  the 

said  A.  B.  [with  the  written  consent  of  the  defendants,  or 
otherwise,  according  to  the  terms  of  the  policy],  assigned  said 
policy  of  insurance  to  this  plaintiff,  in  trust  for  E.  B.,  his  wife. 

IV.  That  up  to  the  time  of  the  death  of  A.  B.,  all  premiums 
accrued  upon  said  policy  were  fully  paid. 

V.  That   on  the    day  of    ,   18 .  . ,  at 

,  said  A.  B.  died. 

VI.  That  said  A.  B.  and  the  plaintiff  each  performed  all  the 
conditions  of  said  insurance  on  their  part,  and  the  plaintiff, 

more  than    days  before  the  commencement  of  this 

action,  to-wit,  on  the    day  of   ,  18.  ., 

at   ,  gave  to  the  defendants  notice  and  proof  of 

the  death  of  said  A.  B.  as  aforesaid,  and  demanded  payment  of 
the  said  sum  of dollars. 

A-^TI.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

5  760.  Assigned.  That  a  policy  was  duly  assigned  and  trans- 
ferred indicates  that  the  assignment  was  by  a  sealed  instru- 
ment, and  a  consideration  is  inferred .^^  In  California  all 
VTitten  instruments  import  a  consideration.®^ 

«i  Fowler  v.   N.   Y.   Indem.   Ins.   Co.,   23  Barb.   143;   Morange  v. 
Mndjre,  f>  Abb.  Pr.  243. 
62  CiT<)  Code,  §  1614. 


495  ixsuRAXCE.  §  761 

§  761.   Accidental  insurance  —  insured  against  insurer. 
Form  No.   183. 
[Title.] 
The  plaintitf  complains,  and  alleges: 

I.  That  defendant  is  a  corporation,  organized  under  the  laws 
of  the  state  of  New  York. 

II.  That  on  the    day  of   ,  18.  .,  at 

the  city  of  San  Francisco,  and  state  of  California,  in  consider- 
ation of  the  payment  by  plaintiff  to  defendant  of  a  premium  of 
dollars  [gold  coin],  defendant  made  and  de- 
livered to  plaintiff  its  policy  of  insurance,  in  writing,  upon  the 

life  of ,  of  the  city  and  county  of  San  Francisco, 

and  state  of  California,  a  copy  of  which  is  annexed  to  this 
ctimplaint  and  marked  "  Exhibit  A.,"  and  is  made  part  thereof; 

and  thereby  insured  the  life  of  said ,  in  the  sum 

of   dollars   [gold   coin],  against  loss  of  life  by 

personal   injury  caused  by  accident,  as. stated  in  said  policy, 

for  the  term  of  [six]  months  from  and  after  the day 

of ,18.. 

III.  That  afterwards,  to-wit,  on  the day  of , 

18.  .,  for  a  valuable  consideration,   the   defendant  made   and 

delivered  to  plaintiff  its  ■svritten  consent  that  said 

might  pursue  tlie  vocation  of  supercargo  on  a  sailing  vessel 
during  the  continuance  of  the  said  policy  of  insurance,  with- 
out prejudice  to  said  policy,  a  copy  of  which  consent  is  hereto 
snnexed  as  a  part  of  this  complaint,  and  marked  '^  Exhibit  B." 

TV.  That  between  the day  of ,  18.  ., 

Did  the day  of ,  18. .,  and  as  plaintiff 

is  informed  and  believes  and  avers,  on  or  about  

18.  .,  and  while  said  insurance  policy  and  said  written  consent 

were  in  force,  said    received   a  personal   injury 

v.hich  caused  his  death  within  three  months  thereafter,  and 
that  said  injury  was  caused  by  an  accident  within  the  meaning 
of  said  policy  and  insurance,  and  the  conditions  and  agree- 
ments therein  contained,  to-wit,  by  tlio  destruction   and  loss 

oT  a  certain  schooner  called while  said ,. 

va.s  on  board  of  her  as  supercargo,  and  not  otherwise,  by  a 
storm  at  sea,  or  other  perils  thereof,  while  she  was  on  a  trad- 
ing voyage  from  the  port  of  San  Francisco,  in  said  state,  to 
the  Aleutian  Islands,  in  the  North  Pacific  ocean,  and  hack  to 
said   San   Francisco,   within   the   meaning  of  said    policy  and 

written  ronsont,  and  between  the  said day  of 

and  said  day  of 


§  701a 


rOKMS   01-    COMl'LAiNTS.  4U6 


V.  Tliat  phiintill'  at  the  Iniios  oi"  making  and  delivery  ol'  said 
policy  and  written  consent,  as  aforesaid,  was  the  wiie  of  said 
^  and  as  such  had  a  valuable  interest  in  his  lii'e. 

\l.  That  said  and  this  plaintill  each  lullilled  all  the  conditions 
and  a'-reenients  of  said  policy  of  insurance  on  their  part,  and 
the  plaintiff  more  than  sixty  days  before  the  conimeneeinent  of 

tills  action,  to-wit,  on  or  about  the day  of , 

o-ave  to  the  defendants  due  notice  and  proof  of  the  death  of  said 

,  as  aforesaid,  and  demanded  payment  of  the  sum 

of   dollars  [gold  coinj,  but  no  part  thereof  has 

been  paid. 

VII.  That  the  defendant  has  not  paid  the  same,  nor  any 
part  thereof. 

[Demand  of  Judgment.] 
[Annex  copy  of  policy,  marked  "  Exhibit  A."] 

§  761a.  The  same  —  averments.  A  complaint  in  an  action 
upon  an  accident  insurance  policy,  which  alleges  that  the  de- 
ceased sustained  bodily  injuries  effected  through  external,  vio- 
lent, and  accidental  means,  and  that  the  death  of  the  deceased 
was  occasioned  by  said  injuries  alone,  the  same  state  of  facts 
being  provided  against  by  the  policy,  states  a  cause  of  action.^^ 
So  in  an  action  against  a  mutual  benefit  insTirance  society,  a 
complaint  which  sets  up  the  contract  of  insurance,  alleges  per- 
formance of  the  conditions  by  the  plaintiff,  avers  that  he  was 
totally  disabled,  and  that  he  has  made  proper  proof  of  his 
disability,  is  sufficient  without  averring  that  the  proof  was 
satisfactory  to  the  corporate  officers.^^  Where  an  accident 
policy  is  conditioned  that  it  shall  not  cover  injuries  received 
while  the  insured  is  under  the  influence  of  liquor,  etc.,  it  is 
not  necessary  to  negative  in  the  complaint  or  petition  a  breach 
of  the  conditions,  though  the  policy  provides  that  a  compliance 
with  the  conditions  are  "conditions  precedent"  to  its  en- 
forcement.^^ And  the  fact  that  the  plaintiff  unnecessarily  nega- 
tives such  conditions  does  not  place  on  him  the  burden  of 
proof  to  sustain  the  allegation,  on  issue  boincr  taken  theroto.'"' 

wpirbarrls  v.  Travelers'  Ins.  Co..  Rf>  Oal.  170:  2.*^  Am.  St.  Rpp.  455. 

B4  Supreme  Council,  etc.  v.  Forsinpor,  125  Ind.  .52;  21  Am.  St.  Rep. 
IPO. 

w.Tonps  V.  IT.  S.  Mut.  Ace.  Assoc.  (Iowa),  61  N.  W.  "Rep.  4S5;  02 
Iowa.  652. 

B6Id.;  and  see  Newman  v.  Assooiation,  76  Iowa,  64;  Sutherland 
V.  Insurance  Co.,  87  id.  505;  Coburn  v.  Insurance  Co.,  145  Mass. 
226. 


497  IKSUEAXCE.  §§  763-764 

§  762.   Marine  insurance  —  on  an  open  policy. 
Form  A'o.   184. 

[Title.] 
The  plaintiit'  complains,  and  alleges: 

I.  [Allege  incorporation  as  in  lorm  No.  174.] 

II.  That  the  plaiutifl:  was  the  owner  of  [or  had  an  interest  in] 
the  ship  [name  of  ship],  at  the  time  of  its  insurance  and  loss, 
as  hereinafter  mentioned. 

III.  That  on  the   day  of   ,  18.  .,  at 

,  the  defendant,  in  consideration  of 

dollars  to  it  paid  [or  which  the  plaintiff  then  promised  to  pay], 
executed  to  him  a  policy  of  insurance  upon  the  said  ship,  a 
copy  of  which  is  hereto  annexed  and  made  part  hereof    [or 

whereby  it  promised  to  pay  to  the  plaintiff,  within 

days  after  proof  of  loss  and  interest,  all  loss  and  damage  ac- 
cruing to  him  by  reason  of  the  destruction  or  injury  of  the  said 

ship,  during  its  next  voyage  from to , 

whether  by  perils  of  the  sea,  or  by  fire,  or  by  other  cause  therein 
mentioned,  not  exceeding  dollars]. 

IV.  That  the  said  vessel,  while  proceeding  on  the  voyage  men- 
tioned in  the  said  policy,  was,  on  the day  of , 

18.  .,  totally  lost  by  the  perils  of  the  sea  [or  otherwise]. 

V.  The  plaintiff's  loss  thereby  was dollars. 

VI.  That  on  the   day  of  ,  18. .,  he 

furnished  the  defendant  with  proof  of  his  loss  and  interest,  and 
otherwise  performed  all  the  conditions  of  the  said  policy  on  his 
part. 

VII.  That  the  defendant  has  not  paid  the  said  loss,  nor  any 
part  thereof. 

[Demand  of  Jfdg^[ekt.]  ^'^ 
[Annex  copy  of  policy.] 

§  763.  Abandonment.  It  is  not  necessary,  in  an  action  of 
covenant  on  a  policy,  that  the  declaration  should  aver  that  the 
plaintiff  had   abandoned  to  the  underwriters.*^ 

§  764.  Insurance  by  agent.  Wl'.ere  the  agent  of  an  insur- 
ance company  was  fnlly  authori'/ed  to  make  insurance  of  vessels, 

«7  For  a  siiffif iont  fomi  of  complaint,  fonsult  Page  v.  Fi-y.  2  Bos. 
&  Ptil.  240:  Crawford  v.  Ilnntor.  8  T.  R.  2.T 

68  Ho<lKson  v.  Marine  Ins.  Co.,  Ty  Cranch,  100;  and  soo  CoUinihian 
Ins.  Co.  V.  Catlelt.  12  Wlioat.  ,TS:',;  Snow  v.  Union  Mut.,  etc.,  Ins.  Co., 
119  Mass.  592;  20  Am.  Rrp.  349. 

Vol.  1—63 


§  765  FORMS   OF   COMPLAINTS.  498 

aud  had,  in  fact,  ou  a  previDus  occasion,  insured  the  same 
vessel  lor  the  same  applicanl,  and  in  Ihe  instance  nnder  con- 
sideration actually  delivered  to  him,  on  receipt  of  the  premium 
note,  a  policy  duly  executed  by  llu'  oUu-crs  o'l  the  company, 
filled  up  aud  countersigned  by  himseli'  under  his  general  author- 
ity, and  having  every  element  of  a  perfect  and  valid  contract, 
the  fact  that  after  the  execution  and  delivery  of  the  policy 
the  party  insured  signed  a  memorandum  thus:  "  The  insurance 
on  this  application  to  take  efl'ect  when  approved  by  E.  P.  D., 
general  agent,"  etc.,  does  not  make  the  previous  transaction  a 
nullity  until  approved."^  And  though  the  general  agent  sent 
back  the  application  directing  the  agent  who  delivered  the 
policy  to  return  to  insured  his  premium  note  and  cancel  the 
policy,  the  party  insured  was  held  entitled  to  recover  for  a  loss, 
the  agent  having  neither  returned  the  note  nor  canceled  the 
policy.'^*' 

§  765.  Interest  of  insured  —  allegation  of.  The  interest  of 
the  insured  is  one  of  the  facts  constituting  the  cause  of  action,''^ 
and  the  averment  that  he  gave  the  defendant  due  proof  of 
loss  and  of  interest,  can  not  be  construed  as  an  averment  that 
the  plaintilf  had  an  insurable  interest.'^^  It  is  the  safest  practice 
to  aver  the  interest,  when  it  does  not  distinctly  appear  in  the 
policy  as  set  forth  or  annexed.'^^  Interest  may  be  more  briefly 
alleged  by  inserting  after  the  description  of  the  object  insured, 
"  then  a.nd  until  the  loss  hereinafter  mentioned,  the  property  of 
this  plaintiff."  It  need  not  be  averred  that  the  plaintiff  was 
interested  at  the  time  of  making  the  policy.  In  marine  insur- 
ance an  interest  at  the  commencement  of  the  risk  is  sufficient,'^^ 
or  that  the  plaintiff  was  interested  in  the  vessel  at  the  time  of 
the  loss,  to  the  extent  of  the  policy.*^^  The  nature  or  extent 
of  the  trust  upon  which  the  interest  was  held  need  not  be 
set  forth,  they  being  matters  of  evidence."^®    Wliere  the  prop- 

69  Insurance  Co.  v.  Webster,  0  Wall.  (U.  S.)  129. 

70  Td.;  Amer.  Law  Rejr.,  .Tnly,  1868. 

71  2  Greenl.  Ev..  §§  370.  .378-381. 

72  Williams  v.  Insm-anro  Co.  of  North  America,  9  How.  Pr.  365. 

73  Phil,  on  Ins.  612;  Ellis  on  Fire  Ins.  17.'>. 

74  2  Greenl.  on  Ev.  381;  2  Phil,  on  Ins.  014.  The  libel  should 
show  insurable  interest  in  a  vessel  at  the  time  the  policy  purports 
fri  tfike  effect.    Earninoor  v.  Ins.  Co..  40  Fed.  Rop.  847. 

7.1  iTenshaw  v.  Mutual  Safety  Ins.  Co.,  2  Blatchf.  99. 
76  Id. 


499  INSURAXCE.  §§  7G6-768 

erty  is  admitted  to  have  been  owned  by  the  plaintiff  when  the 
poUey  was  issued,  the  burden  of  proof  is  upon  the  defendants 
to  show  a  subsequent  aUenation  of  the  property. 


77 


§  766.  Mutuality  of  agreement.  In  an  action  on  an  open 
policy,  providing  that  the  company  shall  be  liable  for  such  sums 
as  shall  be  specified  by  application,  and  mutually  agreed  upon 
and  indorsed  upon  the  policy,  it  is  necessary  to  aver  that  an 
amount  sought  to  be  recovered  had  been  mutually  agreed  upon 
and  indorsed  upon  the  policy.'^® 

§  767.  Nature  of  the  loss.  The  complaint  must  show  a  loss 
of  a  nature  intended  to  be  covered  by  the  insurance;  "^^  but 
not  to  negative  possible  defenses.  And  the  loss  of  a  vessel  in- 
sured should  be  deemed  effectual  and  certain,  from  the  time  the 
vessel  was  so  injured  that  her  destruction  became  inevitable, 
and  the  claim  for  damages  must  be  deemed  to  have  then  attached 
although  she  was  kept  afloat  some  time  after  such  injury.**'  In 
an  action  on  a  marine  policy,  by  the  terms  of  which  the  com- 
pany is  liable  for  any  loss  occasioned  by  fire,  except  when  caused 
by  explosion  of  boiler,  and  except  as  limited  by  certain  warran- 
ties contained  in  the  policy,  a  complaint  which  alleges  that  the 
loss  was  caused  by  fire  which  was  not  caused  by  the  explosion 
of  any  boiler,  and  alleges  generally  that  the  plaintiffs  had  per- 
formed all  the  conditions  of  the  contract  on  their  part,  is  held 
sufficient.*^  But  a  complaint  is  held  to  be  fatally  defective 
when  it  fails  to  allege  that  the  policy  or  certificate  covered  the 
precise  loss  by  fire  and  water,  or  that  when  the  loss  occurred  the 
policy  and  certificate  were  still  binding.*^ 

§  768.  Parties.  Those  who  had  an  interest  in  the  voss'^l  in- 
sured, at  tlio  time  of  the  fatal  injury,  may  recover  upon  the 
policy,  notwithstanding  the  fact  of  their  having  subsequently, 
and  before  the  sinking  of  the  vessel,  made  an  assignment  of  their 

TTOrrell  v.  Hampflen  Ins.  Co.,  1.3  Gray,  431. 
v«rranf>  v.  Evan.svill(^  Ins.  Co.,  ^P,  Ind.  44f;. 
70  Ellis  on  Fire  Ins.  ITC;  Phil,  on  Ins.  C>^R. 

''f^lnmrnn  v.  Oroat  Weslcni  Ins.  Co.  .'►  Al)l).  Pr.  (\.  S.I  17.*^: 
Pardo  V.   Osfrood,  r,  Pvob.  PAH;   revcrsins   S.   C,  2   .\bl>.    Pr.    (\.   S.) 

r.n.-. 

"1  Lonisvlllf  TTKltrwritcrs  v.  iMirlniul.   ^'S.\   Ind.   ."11. 

«2-\Vplfin  V.  Vnii.n   M:irino  Iks.  C...  1.*'.  .\".  Y.  Siipi*.   TOO;  37  X.  Y. 

St.  Rei).  nn.^.. 


§§  7G9,  770  roii.M8  ov  complaints.  500 

iuterost  to  others,  ^vho  arc  not  parties  to  tlie  action.^^  Where 
the  policy  is  on  account  of  wliom  it  may  concern,  tlie  person  to 
whom  it  is  issued  may  sue,  on  behalf  of  all  the  owners,  in  his 
own  name,  as  a  trustee  of  an  express  trust.^'*  If  sucii  person  die, 
his  personal  representative  may  sue.*^*^  Where  several  insui'ance 
companies  join  in  one  policy,  in  which  the  several  liability  of 
each  is  set  forth,  they  may  be  joined  as  defcntlants  in  an  action 
to  recover  the  loss.^^ 

§  769.   Foreign  insurance  company's  compliance  with  statutes. 

In  an  action  against  a  foreign  insurance  company  it  is  not  neces- 
sary to  allege  or  show  that  the  laws  of  the  state  in  wdiich  the 
contract  was  made,  authorizing  the  company  to  do  business 
therein,  had  been  complied  with.^'  But  in  an  action  by  such 
company  such  compliance  must  be  shown.^^ 

§  770.  Attaching  policy  and  application.  Where,  by  the  ex- 
press terms  of  the  policy,  the  proposals,  answers,  and  declara- 
tions made  by  the  applicant  are  made  a  part  of  the  policy,  they 
should  be  stated  in  the  complaint  in  an  action  founded  on  the 
policy .^^  But  such  application  need  not  be  attached  when  not 
made  a  condition  of  the  policy.^^ 

83  Duncan  v.  Great  Western  Ins.  Co.,  5  Abb.  Pi-.  (N.  S.)  173. 

84  Illinois  Fire  Ins.  Co.  v.  Stanton,  57  111.  354;  Walsh  v.  Wash- 
ington INIarine  Ins.  Co.,  32  N.  Y.  427;  Pitney  v.  Glens  Falls  Ins. 
Co.,  65  id.  6;  Sturm  v.  Atlantic  Mut.  Ins.  Co.,  63  id.  77;  Protection 
Ins.  Co.  V.  Wilson,  6  Ohio  St.  554;  Home  Ins.  Co.  v.  Baltimore 
Warehouse  Co.,  93  IT.  S.  527;  Waring  v.  Indemnity  Ins.  Co.,  45  N.  Y. 
606;  6  Am.  Rep.  146;  Strohn  v.  Hartford  In.s.  Co..  33  Wis.  648; 
Fleming  v.  Ins.  Co.,  12  Penn.  St.  391;  Williams  v.  Ocean  Ins.  Co., 
2  Met.  303:  Knight  v.  Eurelva,  etc.,  Ins.  Co.,  26  Ohio  St.  664;  20 
Am.   Rep.  778. 

85  Sleeper  v.  Fnion  Ins.  Co.,  65  Me.  385;  20  Am.  Rep.  706. 

86  Bernero  v.  Insurance  Cos.,  65  Cal.  386:  Insurance  Co.  v.  Boykin, 
12  W^all.  4;J3;  Blasingam©  v.  Home  Ins.   Co.,  75  Cal.  6.33. 

87  Germania  Fire  Ins.  Co.  v.  Cunan,  8  Kan.  9;  Woi>er  v.  Union 
M.  L.  Ins.  Co.,  5  Mo.  App.  51;  Fitzsimmons  v.  City  Fire  Ins.  Co., 
18  Wis.  4.34:  86  Am.  Dec.  761. 

88  .Tones  v.  Smith,  3  Gray,  .500;  Washington  Co.  M.  Ins  Co.  v. 
Hastings,  2  Allen,  398;  Washington  M.  Ins.  Co.  v.  Chamberlain, 
16  Gray,  165. 

89Bidwell  v.  Connecticut  Mutual  Life  Ins.  Co.  3  Sawyer,  261; 
Byers  v.  Farmers'  Ins.  Co.,  35  Ohio  St.  606;  :^5  Am.  Rep.  623; 
Robbitt  V.  L.  ^  L.  &  G.  Ins.  Co.,  66  N.  C.  70;  8  Am.  Rep.  494. 

i^'O  T'nion  Ins.  Co.  v.  MeGooliey.  33  Ohio  St.  .5.55;  Mutual  Benefit 
Ins.   Co.  T.   Cannon,  48  Ind.  264;  .Jacobs  v.   Nat.   Life  Ins.   Co.,   1 


5ul  •  iJSSURAXCE.  §§  771-773 

§  771.  Premium,  how  alleged.  The  complaint  must  aver  pay- 
ment, or  a  liability  to  j)ay  the  premium.^^ 

§  772.  Risks.  Capture,  though  not  enumerated,  is  one  of 
the  risks  where  the  enumeration  of  risks  was  in  the  English  form, 
and  upon  a  loss  the  company  was  liable.^^ 

§  773.   On  cargo  lost  by  fire  —  valued  policy. 

Form  No.  185. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  [Allege  incorporation,  as  in  form  No.  174.] 

II.  The  plaintiff  was  the  owner  of  [or  had  an  interest  in] 
[two  hundred  barrels  of  flour],  shipped  on  board  the  vessel 

called  the  A.  D.,  from to  ,  at  the 

time  of  the  insurance  and  loss  hereinafter  mentioned. 

III.  That  on  the day  of ,  at , 

the  defendant,  in  consideration  of dollars  which 

the  plaintiff  then  paid,  execvited  to  him  a  policy  of  insurance 
upon  the  said  goods,  a  copy  of  which  is  hereto  annexed,  marked 
''  Exhibit  A,"  and  made  part  of  this  complaint  [or  whereby  it 

promises  to  pay  to  the  plaintiff dollars  in  case  of 

the  total  loss,  by  fire  or  other  causes  mentioned,  of  the  said 

goods,  before  their  landing  at or,  in  case  of  partial 

damage,  such  loss  as  the  plaintiff  might  sustain  thereby,  pro- 
vided the  same  should  not  exceed    per  centum 

of  the  whole  value  of  the  goods]. 

TV.  That  on  the   day  of    ,  18.  .,  at 

,  while  proceeding  on  the  voyage  mentioned  in 

Ihe  said  policy,  the  said  goods  were  totally  destroyed  by  fire. 

Y.  That  the  plaintiff's  loss  thereby  was dollars. 

VI.  That  on  the   day  of  ,  18 .  . ,  he 

furnished  the  defendant  with  proof  of  his  loss  and  interest,  and 
otherwise  performed  all  the  conditions  of  the  said  policy  on  his 
part. 

McArthnr.  (\?,2\  Ouarrliaii  ^futnal  Life  Tnfs.  On.  v.  TTopan.  80  111.  35; 
22  Am.  Rop.  180. 

012  r.ropnl.  Ev..  §§  ?rt(\-?,H\;  Pliil.  on   Ins.  Oil. 

»2Tlio  Merfliants'  Ins.  Co.  v.  Edniond,  otc.  17  Orntt.  (Vn.)  138. 
As  to  tlip  tprnis  of  an  insurance  policy,  wliollier  i1;  bp  by  niarinft 
or  flrp  insurance,  see  Eun'l<a  Ins.  Co.  v.  IJobinson.  T^(^  r<Min.  St. 
256:  94  Am.  Dec.  0.-,;  Aiiieiican  II.  Ins.  Co.  v.  Patterson,  28  Ind.  17. 


§§  77-i-TTO  I'OK.MS    01"    C'OMI'LAINTS.  502 

\ll.  'I'liai  I  he  ilelViulaiil  liui?  iiol  paid  the  said  loss,  nor  any 
])arl  tliorool'. 

[DlCMAM)    OF   JlUU.MKNT.J 

[Annex  copy  of  policy,  marked  "  Exhibit  A. "J  ^^ 

§  774.  Interest,  liow  alleged,  in  a  declaration  upon  a  policy 
of  insurance  on  the  cargo  of  a  canal  boat,  it  was  lield  a  sulli- 
cient  averment  of  the  plaintiff's  interest  to  allege  that  the  in- 
surance was  "  for  the  account  and  benefit  of  the  plaintiff  as  a 
common  carrier,  for  hire,"  etc.;  and  a  sufficient  averment  of  the 
liability  incurred,  to  state  that  an  amount  of  goods  exceeding 
that  mentioned  in  the  policy  was  intrusted  to  him  as  a  carrier, 
and  that  they  were  consumed  by  fire,  and  the  plaintiff  thcre1)y 
became  liable  to  pay  to  the  respective  owners  a  greater  sum  than 
that  insured.  It  is  not  necessary  to  aver  actual  payment.'^'*  If 
the  insurance  was  upon  the  goods  to  be  laden,  state  that  they 
were  laden,  and  their  loss.^^ 

§   775.   Valued  policy  —  allegation  of. 
Form  No.   i86. 

That  on,  etc.,  at,  etc.,  in  consideration  of  the  premium  of 
dollars,  then  and  there  paid  to  them  by  the  plain- 
tiff, tlie  defendants,  by  their  agents  duly  authorized  thereto, 
made  their  policy  of  insurance  in  writing,  of  which  a  copy  is 
annexed,  marked  "Exhibit  A,"  and  thereby  insured  for  him 

dollars  upon  the  ship ,  then  lying 

in  the  harbor  of ,  for  a  voyage  from 

to       ,  against  the  perils  of  the  seas,  and  other  perils 

in  the  policy  mentioned. 

§   776.   On  freight  —  valued  policy. 
Form  No.   187. 
[Title.] 
The  plaintiff  complains,  and  alleges: 
I.   [Allege  incorporation,  as  in  form  No.  174.] 
IT.  That  he  had  an  interest  in  the  freight  to  be  earned  by  the 
ship  [Flying  Mist] ,  on  her  voyage  from to , 

»3  As  to  manner  of  pleadinjr  a  want  of  seaworthiness  to  an  action 
on  n.  time  policy,  see  .Tones  v.  Thp  Insnranro  Co.,  2  Wall.  .Tr.  C.  C. 
178. 

»4yan  Xatta  v.  :Mntnal  Serurity  Ins.  Co..  2  Sandf.  4J>0:  and  see 
Dp  Forest  v.  Fulton  Fire  In.s.  Co..  1  Hall,  94. 

»•'•  Marsh  on  Ins.  C3d  ed.)  244-24.5.  278,  724. 


503  iNSUKA^-CE.  §§  777,  778 

at  the  time  of  the  insurance  and  loss  hereinafter  mentioned,  and 
that  a  large  quantity  of  goods  was  shipped  upon  freight  in  her 
at  that  time. 

III.  That  on  the   day  of   ,  18.  .,  at 

,  the  defendant,  in  consideration  of 

dollars  to  it  paid,  executed  to  the  plaintiff  a  policy  of  insurance 
upon  the  said  freight,  a  copy  of  which  is  hereto  annexed,  marked 
"  Exhibit  A,"  and  made  part  of  this  complaint,  and  thereby 

insured  for  him dollars  upon  certain  goods  then 

laden  upon  the  ship,  for  a  voyage  from to , 

against  the  perils  of  the  sea,  and  other  perils  in  tlie  policy 
mentioned. 

IV.  That  the  said  vessel,  while  proceeding  upon  the  voyage 
mentioned  in  the  said  policy  [or  during  said  voyage,  and  while 

lying  in  the  port  of ],  was  [or  state  said  goods, 

the  freight  whereof  was  insured,  were],  on  the day  of 

,  18.  .,  totally  lost  by  [the  perils  of  the  sea]. 

V.  That  the  plaintiff  has  not  received  any  freight  from  the 
said  vessel,  nor  did  she  earn  any  on  the  said  voyage,  by  reason 
of  her  loss  as  aforesaid. 

VI.  That  the  plaintiff's  loss  thereby  was dollars. 

VII.  That  on  the day  of  .  .  v ,  18.  .,  he 

furnished  the  defendant  with  proof  of  his  loss  and  interest,  and 
otherwise  performed  all  tbe  conditions  of  the  said  policy  on  his 
part. 

VIII.  That  the  defendant  had  not  paid  the  said  loss. 

[Demaxd  of  Judgment.] 
f  Annex  copy  of  policy,  marked  "  Exhibit  A."] 

5   777.    Averment  of  loss  by  collision. 
Form  No.   i88. 

That  on  the day  of ,18..,  while  the 

gaid  [ship],  with  the  said  goods  on  board,  was  proceeding  on  her 
said  voyage,  anrl  before  her  arrival  at  her  said  port  of  destination 
in  the  said  policy  mentioned,  another  vessel,  with  great  force 
and  violence  was  cairied  against  and  run  foul  of  the  said  [ship! 
and  tho  said  [ship]  thereby  was,  with  the  said  goods,  sunk  and 
rtotallvl  lost. 

iS  778.   Averment  of  waiver  of  a  condition. 
Form  No.   i8g. 

That  aftorwnrds.  and  on  tho da.v  of , 

18. .,  at ,  the  defendants,  by  their  agents  duly 


§  779  FOllMS    OF   COMPLAINTS.  504: 

authorized  thereto,  waived  the  condition  of  the  said  policy  by 
which  [designating  itj,  and  released  and  discharged  the  plain- 
tiil's  from  the  performance  thereof  [or,  and  consented  that  the 
plaiutilfs  should,  etc.,  according  to  the  facta] . 

§   779.   For  a  partial  loss  and  contribution. 

Fori)i  No.  ipo. 

[TiTLE.J 

The  plaintiff  complains,  and  alleges: 

I.  [Allege  incorporation  as  in  form  No.  174.] 

il.  That  on  the   day  of    ,  18.  .,  at 

,  in  consideration  of  the  premium  of 

dollars,  then  and  there  paid  by  the  plaintiff  to  the  defendant, 
the  defendants  by  their  agents  duly  authorized  thereto,  made 
their  policy  of  insurance  in  writing,  of  which  a  copy  is  annexed 
as  a  part  of  this  complaint,   and   marked  "  Exhibit  A,"  and 

thereby  insured   for  him    dollars   upon,  certain 

goods  then  and  there  laden  upon  the  ship   ,  for 

a  voyage  from to ,  against  the  jierils 

of  the  sea  [or  mention  the  perils  which  occasioned  the  loss]. 

III.  That  said  ship  did,  on  the day  of ^ , . , 

sail  on  the  said  voyage,  and  while  they  proceeded  thereon  was, 
by  the  perils  of  the  seas,  dismasted,  and  otherwise  damaged  in 
her  hull,  rigging,  and  appurtenances;  insomuch  that  it  was 
necessary  for  the  preservation  of  said  ship  and  her  cargo,  to 
throw  over  a  part  of  said  cargo  [or  a  part  of  her  rigging  and 
furniture],  and  the  same  was  accordingly  thrown  over  for  that 
purpose. 

IV.  That  in  consequence  thereof,  the  plaintiff  was  obliged  to 

expend dollars  in  repairing  said  ship,  at , 

and  is  also  liable  to  pay dollars  as  a  contribution 

to  and  for  the  loss  occasioned  by  said  throwing  over  of  pari;  of 
said  cargo. 

V.  That  on  the   day  of    ,   IB.  ..  at 

he  gave  to  the  defendant  due  notice  and  proof 

of  the  loss  as  aforesaid,  and  otherwise  rluly  fulfilled  all  the  con- 
ditions of  said  policy  of  insurance  on  his  part. 

VI.  That  no  part  of  the  same  has  been  pairl  by  the  defendant. 

[Demand  of  .TrDOMEyr.] 
[Annex  copy  of  policy,  marked  "Exhibit  A."] 


5U5  INSURANCE.  §§  780-783 

J   780.   Allegation  for  a  pai'ticular  average  loss. 
Form  No.   igi. 

That  ou  the   day  of  ,  while  on  the 

high  seas,  the  sea-water  Ijroke  iuto  the  said  sliip,  and  damaged 
the  said  [tiourj  to  the  amount  of dollars. 

s  781.  Contribution.  The  owner  of  a  vessel  is  not  entitled 
to  contribution  on  general  average,  for  damage  sustained,  or  ex- 
pense incurred,  by  reason  of  the  perils  of  the  seas,  if  the  vessel 
was  unseaworthy  when  she  left  port,  although  from  a  latent 
defect.^*^ 

§  782.  Jettison.  A  vessel  fell  in  with  a  ship,  in  a  sinking  con- 
dition. To  save  the  lives  of  the  ship's  passengers  and  crew, 
the  master  of  the  vessel  consented  to  receive  them;  but  as  it 
was  necessary  to  throw  overboard  part  of  his  cargo  to  make 
room  for  them,  he  began  to  do  so  before  any  of  them  came  on. 
board,  and  continued  it  while  they  were  coming  on  board,  until 
room  enough  was  made.  The  owner  of  the  vessel  sued  the  in- 
surers for  a  contribution  to  general  average,  for  the  above  jetti- 
son; it  was  held  that  he  could  not  recover.^ 

§  783.  Particular  average.  Furniture  was  insured  "  free  of 
particular  average  "  (which  was  taken  to  mean  "  against  total 
loss  only").  During  the  voyage,  the  vessel  was  wrecked  and 
condemned,  and  said  goods  were  transshipped,  parts  of  sets  into 
one  vessel,  and  parts  into  another.  One  of  said  vessels  was  lost, 
with  its  cargo,  and  the  other  arrived  safely;  it  was  held  that 
tlio  insurers  were  liable  for  the  goods  lost.^* 

»o  Wilson  Y.  Cross,  33  Cal.  60. 

87  DaT)ney  v.  New  England  Mntual  Ins.  Co..  14  Allen  (Mass.),  300. 

»8  Pierce  v.  Columbia  Ins.  Co.,  14  Allen  QIass.).  320. 

64: 


CHAPTER  VII. 

ON    JUDGMENTS. 

§   784.   General  form. 

Form  No.  igz. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18 . . ,  in  the 

Superior  Covirt  of  the  county  of ,  in  this  state,  a 

judgment  was  duly  given  and  made  by  said  court  in  favor  of  this 
plaintiff,  and  against  the  defendant  herein,  in  an  action  in  said 
court  last  above  named  pending,  wherein  this  plaintiff'  was 
plaintiff',  and  said  defendant  was  defendant,  for  the  sum  of 

dollars  [if  the  judgment  provided  for  a  special 

rate  of  interest,  add],  which  said  judgment  bears  interest  from 
the  date  thereof  at per  centum  per  annum. 

II.  That  said  judgment  remains  wholly  unpaid.^ 

[Demand  of  Judgment.] 

§  785.  Action  lies  on  judgment  or  decree.  Where  a  court  of 
competent  jurisdiction  has  adjudicated  a  certain  sum  to  bo  due 
from  one  person  to  another,  a  legal  obligation  arises  to  pay  that 
sura,  on  which  an  action  of  debt  to  enforce  the  judgment  may 
be  maintained.  It  is  in  this  way  that  judgments  of  foreign 
courts  are  enforced,  and  the  rule  applies  equally  whether  they 
be  courts  of  record  or  not.^  Tbe  same  rule  prevails  in  the 
United  States,  where  such  action  has  l)eon  maintained  in  one 
state  on  a  judgment  rendered  by  a  justice  of  the  peace  in 
anotbor.'"'  In  Virginia,  debt  was  maintained  upon  a  judgment 
nbtainf'd  in  n  court,  tbe  office  of  wbicli  bar!  been  consumed  by 

1  The  fibore  form  of  complaint  is  sufficient  on  a.  .iudgmont  of 
any  domestic  court,  or  on  a  jnd.srment  of  a  Circuit  Court  of  tlio 
Fnitefl  States,  for  the  jurisdiction  of  sucli  courts  is  presumed. 
Bemrnt  v.  Wisner,  1  Code  R.  (N.  S.)  143;  Griswold  v.  SedgwiclJ, 
1   Wend.  120. 

2  Williams  v.  Jones,  13  M.  &  W.  028. 

3  Cole  V.  Driskell.  1  Blackf.  Ifi;  and  soo  Outta  Pcrcha  Mf?.  Co. 
X.  Mayor.  108  X.  Y.  276;  2  Am.  St.  "Rep.  412:  :\Ioorc  v.  Offden,  35 
Ohio  St.  433. 


507  JUDGMENTS.  §§  786,  787 

fire,  and  the  record  of  the  judgment  wholly  destroyed.''  An 
action  lies  upon  an  unpaid  judgment,  although  the  execution 
has  not  been  returned.^  It  is  not  necessary  to  allege  an  un- 
successful effort  to  collect  the  judgment.*'  It  was  formerly 
doubted  whether  an  action  could  be  maintained  upon  a  decree 
for  the  reason  that  the  plaintitf  had  no  legal  right  to  the  money, 
but  only  that  upon  certain  views  peculiar  to  a  court  of  equity 
the  payment  ought  to  be  made  and  that  no  promise  could  be 
implied  from  a  decree.'''  It  is  now  established,  both  in  England 
and  the  United  States,  that  an  action  will  lie  on  such  a  decree.^ 
Such  action  lies  although  the  judgment  could  liave  an  execution 
issued  thereon.^ 

§  786.  Against  counties.  A  judgment  against  a  county 
under  the  act  authorizing  counties  to  sue  and  be  sued,  has  the 
effect  of  converting  a  demand  into  an  audited  claim.^*^  After 
such  judgment  has  been  obtained  the  proper  mode  of  enforcing 
it  is  by  a  writ  of  mandate.  An  ordinary  action  on  such  judg- 
ment does  not  lie.-^^ 

§  787.  Judgment,  how  pleaded.  In  pleading  a  judgment  or 
award,  it  is  not  necessary  to  state  the  facts  conferring  jurisdic- 
tion, but  such  judgment  or  determination  may  be  stated  to  have 
been  duly  given  or  made.^^     This  applies,  however,  to  judg- 

4  Newcomb  v.  Drummond,  4  Leigh,  57. 

5  I.inton  V.  Hurley,  114  Mass.  TG. 

6  King  V.  Blood,  41  Cal.  314. 

7  See  Carpenter  v.  Thoniton,  2  Barn.  &  Aid.  52. 

8  Henderson  v.  Henderson,  51  Eng.  Com.  L.  288;  Pennington  r. 
Gibson,  10  How.  (U.  S.)  76;  Freeman  on  .Judgments,  §§  4;i2-441. 

0  Brooks  V.  Todd.  1  Handy,  1G9;  Herdley  v.  Koby,  6  Ohio,  521; 
Fox  V.  Burns,  2  W.  L.  M.  .S8T;  Linton  v.  Hurley,  114  Mass.  76; 
Hummer  v.  lyamphear,  32  Kan.  4.39;  49  Am.  Hep.  491;  and  see 
McDonald  v.  Dickson,  85  N.  C.  248;  Lambsou  v.  Moffett,  61  Md. 
426;  Pitzer  v.  Russell,  4  Oreg.  124. 

10  Sharp  V.  Contra  Costa  Co.,  34  Cal.  28^1. 

11  Alden   v.   County  of  Alameda,  43  Cal.   270. 

12  Cal.  Code  Civ.  Pro.,  8  4.5G;  N.  Y.  Code  Civ.  Pi-o.,  §  .532;  Ohio 
Code,  §  120;  Weller  v.  Dickinson.  93  Cal.  108;  Edwards  v.  Kellings, 
99  id.  214;  Canipe  v.  Lassen.  G7  id.  139;  Seanlan  v.  Murphy.  51 
Minn.  536;  Wlieeler  v.  Dakin.  12  How.  Pr.  .542.  It  is  said,  in  great 
measure  obiter,  in  Hollistei-  v.  Ilollislcr,  10  How.  Pr.  .532,  that  this 
section  does  not  apply  to  forciLMi  Judgments,  and  tliat  a  general 
averment  of  jurisdiction  would  not  Iw  sufTicient;  l)ut  in  Halstead 
V.  Black.  17  .\bb.  Pr.  227,  Ihr  <(iutr;iry  is  held.  Si>(>  S  799,  post. 
A  complaint  in  an  action  on  a  Judgment  is  sufTicient,  in  llie  matter 


§§  788 -Ti'O  l-'OKMS    OF    COMPLAINTS.  508 

uu-nts  of  courts  of  general  jurisdiction,  lu  suing  an  a  judgment 
of  a  foreign  court  of  inferior  jurisdiction,  facts  must  be  stated 
showing  jurisdiction  of  the  person  and  the  subject-matter.^^ 
In  Ohio  it  was  held  that  this  section  was  not  intended  to  apjdy 
to  the  judgments  of  the  Superior  I'ourts  of  general  jurisdiction 
of  that  state,  or  to  the  judgments  of  the  courts  of  other  states.^'^ 
But  section  120  of  the  Ohio  Code  refers  only  to  "  pleading  a 
judgment  or  other  determination  of  a  court  or  officer  of  special 
jurisdiction."  In  Indiana  it  is  held  that  in  a  complaint  on  a 
judgment  of  a  justice  of  the  peace  of  another  state,  the  aver- 
ment that  the  judgment  or  decision  was  duly  given  or  made  is 
equivalent  to  an  averment  that  the  justice  had  jurisdiction  of 
the  person  and  subject-matter.^^ 

§  788.  The  same  —  date  of  entry.  Where  in  an  action  on  a 
judgment  the  postca  in  the  record  stated  that  the  judge  pre- 
siding at  nisi  prins  sent  up  the  record  of  proceedings  had  before 
him  on  the  19th  day  of  November,  1855,  and  it  appeared  that 
judgment  was  signed  September  26,  185fi,  it  was  held  that 
it  was  properly  averred  in  the  complaint  that  the  judgment 
was  recovered  on  the  latter  day;  and  if  this  had  been  an  error  it 
was  amendable  at  the  trial,  and  would  be  disregarded  on  appeal.^® 

§  789.  The  same  —  appeal.  A  judgment  unreversed  and  not 
suspended  may  be  enforced. ^'^  But  it  need  not  be  averred  in 
the  complaint  that  it  was  unreversed.-'^ 

§  790.  The  same  —  pleading  in  federal  courts.      A  declaration 

is  sufficient  which  avers  that  "  at  a  general  term  of  the  Supreme 
Court  in  equity,  for  the  state  of  New  York,"  etc.;  being  thus 
averred  to  be  a  court  of  general  jurisdiction,  no  averment  was 

of  description,  when  it  sets  forth  the  court  in  which  it  was 
rendered,  the  place  at  which  the  court  was  held,  the  names  of 
the  parties  in  favor  of,  and  against  whom  it  was  entered,  the  date 
of  Its  rendition,  and  the  sum  recovered.  Andrews  v.  Flaclf,  88  Ala. 
294.  Additional  averments  as  to  the  contract  on  which  the  judg- 
ment is  found  are  unnecessary  and  supei'fluous.  Sims  v.  Hertz- 
feld,  95  Ala.  145. 

13  McLaugiilin  v.  Nichols,  13  Abb.  Pr.  244. 

14  Mempliis  Medical  College  v.  Newton,  2  Handy,  163. 

15  Crake  v.  Crake.  18  Ind.  150;  Halstead  v.  Black,  17  Abb.  Pr.  227. 
10  Lazier  v.  Westcott,  26  N.  Y.  146;  82  Am.  Dec.  404. 

IT  Raun  v.  Reynolds,  18  Cal.  276. 

18  1  Chit.  PI.  .321;  Chaquette  v.  Ortet,  60  Cal.  594;  Freem.  on 
Judg.,  §§  432-434. 


509  JUDGMENTS.  §§  791-7 L>3 

necessary  that  the  subject-matter  iu  questiuu  was  within  its 
jurisdiction,  and  the  courts  of  the  United  States  will  take  notice 
of  the  judicial  decisions  in  the  several  states,  in  the  same  man- 
ner as  the  courts  of  those  states. ^'^  Indeed  it  has  become  a 
settled  practice  in  declaring  in  an  action  upon  a  jvidgnient,  not 
as  formerly,  to  set  out  in  the  declaration  the  whole  record  of 
the  proceedings  in  the  general  suit;  but  only  to  allege,  generally, 
that  the  plaintiff,  by  the  consideration  and  judgment  of  the 
court,  recovered  the  sum  mentioned  therein;  the  original  cause 
of  judgment  having  passed  in  rem  judicatam.^ 

§  791.  Judgment  by  confession.  A  judgment  creditor,  made 
such  by  confession  of  judgment,  who  seeks  to  reach  money  of 
the  judgment  debtor  in  the  hands  of  junior  judgment  credi- 
tors, upon  the  ground  that  he  has  a  prior  lien  on  the  same, 
must  aver  in  his  complaint  that  at  the  time  his  judgment  was 
rendered,  the  amount  for  which  it  was  rendered  was  unpaid  and 
due.2i 

§  792.  Defense  of  dismissal.  Where  defendant  relies  in  de- 
fense upon  an  agreement  under  which  a  former  action  for  the 
same  cause  was  dismissed,  settled,  or  released,  he  must  raise  such 
defense  by  plea,  otherwise  it  will  not  be  available  as  a  bar.'^ 
The  plea  of  nil  debet  is  an  insufficient  answer  to  an  action  on  a 
judgment.^ 

§  793.  Judgments  of  Justices'  and  Probate  Courts.  It  is  a 
general  rule  that  the  law  presumes  nothing  in  favor  of  the 
jurisdiction  of  a  Justice's  Court.  Where  such  rule  prevails,  a 
complaint  on  a  judgment  of  a  justice  must  affirmatively  show 
every  fact  conferring  jurisdiction.^  This  was  originally  the 
rule  in  California,  but  it  has  since  been  changod  by  statute.^'' 
In  pleading  the  judgment  of  a  Probate  Court,  in  California,  it 
was  formerly  necessary  to  set  forth  the  facts  which  ffive  juris- 
diction.2*^  This,  however,  has  l)oen  chnnfrod  by  the  Code,  soc- 
io Penninpton  v.  r.ibRon.   10  How.  (U.   R.)  0.5. 

20  Rifldle  V.   Wilkiiis,   1    Pet.   OSO. 

21  Denver  v.  Burton,  2.S  Cal.  TA^. 

22iTaIdoman  v.  T'nitcd  States.  01   T^  R.   (1   Otto)  r^9A. 

23  Indianapolis.  B.  &  W.  Railway  Co.  v.  Bi.sley.  .W  Ind.  00. 

24Swnin  v.  Chase.  12  Cal.  2«.3;  Bowloy  v.  Ilowanl,  '2.?,  id.  401. 

25  Cal.  Code  Civ.  Pro..  §  4!-)0. 

26  Smith  v.  Andrews,  0  Cal.  0.52;  Townsond  v.  Cordon,  19  id.  189. 


g§  711-1,  795  roKMs  of  comi'laints.  510 

tiou  -loo,  ami  judgiiR'iu.s  oi  that  court  arc  now  pleaded  as  other 
judgments  of  courts  ol  gcueral  jurisdiction.-' 

§  794.   On  a  judgment  by  leave  of  court. 

I'orm  No.   193. 

[Title.] 
The  plaintilf  complains,  and  alleges: 

I.  That  by  leave  of  this  court  lirst  had  and  obtained  by  order 

of  this  court,  made  at  the  General  Term  held  at , 

and  on    ,  which  order  was  made  on  due   notice 

to  the  defendant,  the  said  plaintiff  brings  this  action. 

II.  [Allege  recovery  of  judgment  as  in  preceding  form.] 

[Demand  of  Judgment.] 

§   795.  Necessary  averment.       In  New  York,  an  action  upon 

a  judgment  can  not  be  maintained  between  the  original  parties 
thereto,  except  as  otherwise  prescribed,  without  leave  of  court, 
and  it  is  necessary  to  aver  that  leave  to  prosecute  the  action 
has  been  obtained.^*  And  if  this  averment  is  not  made,  it 
does  not  state  a  sufficient  cause  of  action.^^  The  practice  in 
California  is-,  however,  different,  as  the  suit  may  be  commenced 

27  Beans  v.  Emanuelli.  30  Gal.  117.  Under  the  Wisconsin  statute 
(R.  S.,  §  2G73),  in  pleadiufi  a  judgment  of  a  court  of  special  juris- 
diction it  Is  not  necessary  to  state  tlie  facts  conferring  jurisdiction, 
but  sucli  judgment  may  be  stated  to  have  been  "  duly  given  or 
made."  And  an  allegation  that  the  plaintiff  recovered  a  judgment 
against  the  defendant  and  that  it  Avas  duly  docketed,  is  held  to  be 
equivalent  to  a  statement  that  such  judgment  was  "  duly  given 
or  made."  Tierstofif  v.  .Torges,  86  Wis.  128;  39  Am.  St.  Rep.  881;  see, 
also,  Tuttle  V:  Robinson,  86  N.  Y.  Supp.  346;  91  Hun,  187.  In 
pleading  a  judgment  of  a  Justice's  Court,  in  Montana,  the  pleader 
must  either  a-ver  that  the  judgment  was  "  duly  given  or  made,"  as 
permitted  by  the  statute  (Code  Civ.  Pro..  §  103),  or  the  facts  con- 
ferring jurisdiction  must  be  alleged  and  proved.  Harmon  v.  Cattle 
Co..  9  :\ront.  243;  Weaver  v.  English.  11  id.  84;  see  §  328,  ante.  In 
New  Yorli,  it  must  be  alleged  that  the  judgment,  if  of  a  .Tustice's 
Court,  was  recovered  in  a  county  of  the  state,  docketed  in  that 
county  and  execution  issued,  and  that  the  judgment  debtor  was  a 
resident  of  the  state  and  county.     Tuttle  v.   Robinson,   36  N.   Y. 

Supp.  .346;  91  Hun,  187. 

28  N.  Y.  Code  Civ.  Pro.,  §  1913. 

29  Graham  v.  Scripture.  26  How.  Pr.  501.  Cases  excepted  from  this 
rule.  See  Smith  v.  P.ritton.  45  How.  Pr.  428;  Carpenter  v.  Butler, 
20  Hun,  2.')1 ;  Baldwin  y.  Roberts,  30  id.  163;  Goodyear,  etc.,  Co.^ 
v.  Frisselle,  22  id.  174. 


511  JUDGMENTS.  §§  790-798 

without  leave  of  court  previously  obtained.^"  Yet  there  are 
in  our  practice  numerous  instances  where  leave  of  court  must 
be  first  obtained;  such  as  suits  against  receivers,  etc. 

§   796.   The  same,  by  an  assignee. 

Form  No.   194. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18 .  . ,  in  the 

Superior  Court,  in  and  for  the  county  of ,  in  this 

state,  a  judgment  was  duly  given  and  made  by  said  court  in 
favor  of  one  C.  D.,  and  against  E.  F.,  the  defendant  herein,  in 
an  action  in  said  court  pendiiig,  wherein  said  C.  D.  was  plain- 
tiff, and  the  said  E.  F.  was  defendant,  for  the  sum  of 

dollars. 

II.  That  on  the    day  of   ,  18..,  at 

,  the  said  C.  D.  assigned  said  judgment  to  this 

plaintiff. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

§  797.  Demand.  It  is  not  necessary  to  aver  any  demand  of 
payment  by  the  assignee,  or  any  refusal  to  pay  by  the  debtor.'^ 

§  798.   On  a  foreign  judgment  of  a  court  of  general  jurisdiction. 

Form  No.   195. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  times  hereinafter  mentioned,  the  Court  of  Com- 
mon Pleas,  in  and  for  the  county  of ,  in  the  state 

of  [Ohio],  was  a  court  of  general  jurisdiction,  duly  created  and 
organized  by  the  laws  of  said  state. 

II.  That  on  the   day  of   ,  18 .  . ,  the 

plaintiff  commenced  an  action  in  said  court  against  the  defend- 
ant by  the  issuance  of  summons  [or  other  process,  as  the  case 
may  be],  which  summons  was  duly  and  personally  served  upon 
paid  defendant  [or  in  wliich  action  the  defendant  appeared  in 

3f  Bronzai)  v.  Drnlmz.  O.*^  Cal.  047.  And  this  is  so  altliouffli  the 
suit  be  brou^rlit  on  a  judgment  of  a  court  of  anotlier  state,  by  the 
law  of  which  no  action  can  be  maintained  on  a  judgment  without 
leave.    Weber  v.  Yancy,  7  Wash.  St.  84. 

31  Moss  V.  Shannon,  1  Illlt.  175. 


g  799  FOUMS    OF   COMPLAINTS.  513 

person,  or  by  attorney].     That  tluTcupon  such  proceedings  were 

had  therein  in  said  court,  tliat  on  the day  of , 

lb.  .,  a  jutlgnient  for  tlie  sum  ol dollars  was  duly 

given  and  made  by  said  court  in  lavor  oI  the  plaintili',  and 
against  the  defendant. 

111.  That  no  part  thereof  has  been  paid  |  except,  etc.] 
[Demand  of  Judgment.] 

§  799.  Essential  allegations.  In  pleading  the  judgment  of  a 
sister  state,  it  is  suilicient  to  allege  tliat  it  was  duly  recovered. 
Facts  conferring  jurisdiction  need  not  be  stated,  overruling 
dictiim.^'^  It  is  necessary  to  allege  jurisdiction  only  in  the  case 
of  a  court  wdiose  title  indicates  that  it  may  be  one  of  limited  ju- 
risdiction. In  such  a  case,  it  is  better  to  aver  that  the  court  had 
a  general  jurisdiction.  This  was  held  necessary  in  an  action 
on  the  judgment  of  a  County  Circuit  Court  of  another  state/'^ 
In  Foot  V.  Stevens,  17  Wend.  483,  it  is  said  that  Courts  of  Com- 
mon Pleas,  and  County  Courts  of  other  states,  are  to  be  pre- 
sumed of  general  jurisdiction.^'*  A  judgment  of  a  court  of  a 
foreign  country,  complete  and  regidar  upon  its  face,  is  privia 
facie  valid,  and  a  complaint  upon  such  foreign  judgment  need 
not  allege  that  the  court  by  which  it  was  rendered  had  juris- 
diction either  of  the  cause  or  the  parties.^^  In  an  action  upon 
a  judgment  rendered  in  the  Queen's  Bench  Division  of  the 
Hisfh  Court  of  Justice,  in  England,  an  allegation  that  the  plain- 
tiff in  the  action  in  which  the  judgment  was  rendered  signed 
final  judgment  for  a  specified  sum  in  accordance  with  the  terms 
of  an  order  of  the  said  court,  "  which  said  judgment  was  then 
and  there  duly  given,  made,  and  entered,"  is  sufficient  as  against 
a  general  demurrer.^^ 

32  Hollister  v.  Hollister.  10  How.  Tr.  .532;  Ayres  v.  Covill.  18  Barb. 
2r.O;  Halstead  v.  Black,  17  Abb.  Br.  227;  and  see  Kronberg  v.  Elder. 
18  Kan.  1.50:  Couehran  v.  Gilman,  81  Iowa,  442:  Ritchie  v.  Carpen- 
ter. 2  Wash.  St.  512;  26  Am.  St.  Rep.  877;  Gilchrist  v.  Oil  Co.,  21 
W.  Va.  115;  but  compare  Gebhard  v.  Gamier,  12  Bush.  321;  23  Am. 
Rep.  721. 

33  ]vrrT>anghlin  v.  Nichols.  13  Abb.  Pr.  244. 

34  Compare,  also,  Frees  v.  Ford,  6  N.  Y.  176:  Knndolf  v.  Thal- 
hoimer,  17  Barb.  506;  also,  Pringle  v.  Woolworth,  90  N.  Y.  .502; 
Stfwart  V.  Stewai-t.  27  W.  Va.  167;  Specklemeyer  v.  Dailey,  23  Neb. 
101:  8  Am.  St.  Rpp.  110. 

3r^  Gnnn  v.  Peakes,  36  Minn.  177;  1  Am.  St.  Rep.  661. 
36Dore  V.  Thomburgh,  90  Cal.  64;  26  Am.  St.  Rep.  100. 


513  J  LDGMEXTS.  §§  800-803 

§  800.  Appearance,  how  alleged.  Alleging  that  defendant  was 
duly  notified,  but  not  saying  of  what;  or  that  he  had  personal 
notice  of  the  commencement  of  the  suit,  without  saying  from 
whom,  is  bad.^'^ 

§  801.  Appearance  without  summons.  In  pleading  the  judg- 
ment of  a  court  of  general  jurisdiction  of  another  state,  if  the 
defendant  therein  was  served  or  appeared,  the  facts  upon  which 
jurisdiction  is  founded  need  not  be  averred.  Want  of  jurisdic- 
tion is  matter  of  defense.^^ 

§  802.  Exemplification  of  judgment.  A  certificate  of  exempli- 
fication of  a  judgment  rendered  in  another  state,  attested  by  the 
clerk  under  the  seal  of  the  court,'^nd  when  the  presiding  judge 
of  the  court  certifies  that  the  attestation  is  in  due  form  of  law, 
is  sufficient  to  sustain  an  action  in  another  state. ^^  It  is  only 
necessary  that  the  certificate  should  state  the  main  facts  which 
are  made  necessary  by  the  act  of  Congress  respecting  the  authen- 
tication of  judgments.  It  is  not  necessary  to  aver  jurisdiction.^^ 
A  certificate  of  the  proceeding  of  the  Surrogate's  Court  of  New 
York,  which  states  that  A.  W.  B.  is  surrogate  of  the  city  and 
county  of  New  York,  and  acting  clerk  of  the  Surrogate's  Court; 
that  he  has  compared  the  transcript  of  the  papers  with  the 
original  records  in  the  matter  of  the  estate  of  W.  Y.,  and  finds 
the  same  to  be  correct,  and  a  true  copy  of  all  the  proceedings; 
and  that  the  certificate  is  in  due  form  of  law;  in  testimony 
whereof  he  sets  his  hand  and  affixes  his  seal  of  office  —  is  suffi- 
cient.'*^ 

§  803.  Force  and  effect  of  foreign  judgment.  The  judgment 
in  one  state  is  to  be  received,  and  have  full  force,  eflfect,  and 
virtue,  in  another  state.^^     An  action  on  a  judgment  of  a  court 

37  Lonjr  V.  Lonff,  1  nill,  .597. 

3«  Wheeler  v.   Raymond.  S  Cow.  ?A1:  soe  Sohenk  v.  Blrdseye.   2 
Idaho,  l.'?0.  and  c-nses  fifed  in  §  701).  ante. 
39Thomi)son  v.  Manrow,  1  Cal.  428. 
'•^'LoAv  v.  Burrows,  12  Cal.  181. 

41  Id.;  soe,  also,  P.oan  v.  Lnr:\-ea,  81  Cal.  1^)1;  C.nnn  v.  Poakos.  36 
Minn.  177:  1   .\m.  St.  Rep.  OCI. 

42  Miller  v.  Diiryoe,  7  Cranch,  ISl ;  Il;inii)ton  v.  McConnell,  3 
Wheat.  2.''.4:  Mayhew  v.  Thatcher,  r»  id.  120;  Armstronp  v.  Carson's 
Ex'rs,  2  Dall.  .302;  C.reen  v.  Sarniiento.  9  Wash.  C.  C.  17:  Borden 
V.  Fifeh.  I."  .Johns.  121;  8  Am.  Doe.  22.5;  Shumway  v.  Stillman.  4 
Cow.  293:  Teel  v.  Yost.  12.S  \.  Y.  .387:  Semjtle  v.  Clenn,  91  Ala.  24.5; 
24  Am.  St.  Rep.  894;  Ainliler  v.  Whipple.  1.39  111.  311;  32.  Am.  St. 
Rep.  202.     Sntfifirnt  alletration  of  the  effect  of  a  foreign  judgment 

Vol.  1—65 


§  804  EOUMS    OF   C•OMl'l,Al^'TS.  514 

of  competent  jurisdiction,  in  the  slate  oi'  New  York,  may  be 
maintained  in  this  state,  notwitiistanding  an  appeal  i'rom  such 
judgment  has  been  taken,  and  is  still  pending  in  the  Court  of 
Appeals  in  that  state."*^ 

The  provision  of  the  United  States  Constitution  giving  force 
and  eil'ect  to  the  judgments  of  sister  states  has  no  reference  to 
the  manner  of  pleading,  but  only  to  their  etl'ect  when  offered  in 
evidence.'*^ 

§  804.  Allegation  of  jurisdiction.  In  actions  on  judgments 
obtained  in  another  state,  where  the  transcript  shows  the  juris- 
diction of  the  court  on  its  face,  it  is  not  necessary  to  aver  juris- 
diction.^^ In  Indiana,  the  record  of  the  judgment  or  a  transcript 
of  it  must  be  set  forth.^^  It  should  not  be,  in  New  York.*^  If 
the  judgment  was  recovered  in  Ohio  against  the  company  by  an 
erroneous  name,  but  the  suit  upon  the  judgment  was  brought  in 
Indiana  against  the  company,  using  its  chartered  name  correctly, 
accompanied  with  an  averment  that  it  was  the  same  company, 
this  mistake  is  no  ground  of  error;  it  could  only  be  taken  ad- 
vantage of  by  a  plea  in  abatement  in  the  suit  in  which  the  first 
judgment  was  recovered.'**  In  Ohio  it  is  held  that  a  transcript 
of  a  record  showing  the  recovery  of  a  judgment  is  not  "  an  in- 
strument for  the  unconditional  payment  of  money  only,"  and 
can  not  be  made  a  part  of  the  complaint  by  reference.^^  In  an 
action  in  Kansas  upon  a  judgment  recovered  in  the  Court  of 
Common  Pleas  of  Pennsylvania,  the  petition  need  not  aver  that 
that  court  had  jurisdiction,  either  of  the  person  or  the  cause  of 
action. '^^ 

under  the  foreign  laws.  See  Wright  v.  Chapin,  74  ITun,  521;  31 
Abb.  N.  C.  137. 

43  Taylor  v.  Shew.  39  Cal.  .530. 

44Gebhard  v.  Garnier,  12  Bush,  321;  23  Am.  Rep.  721;  Karns  v. 
Knnkle,  2  Minn.  31.3. 

45  Low  V.  Burrows,  12  Cal.  181.  How  such  a  complaint  should 
state  the  transcript,  see  Richardson  v.  Ilicltman,  22  Ind.  244; 
§  799,  ante,  and  cases  cited;  also,  Crane  v.  Crane,  19  N.  Y.  Supp. 
691;  compare  Thomas  v.  Pendleton,  1  S.  Dak.  150;  Cowgill  v. 
Farmers'  Ins.  Co.,  25  Oreg.  3fi0. 

46  Brady  v.  Murphy,  19  Ind.  2.58;  Adkins  v.  Hudson,  id.  .392.  This 
is  no  longer  required  in  Indiana.  Mull  v.  McKnight,  67  Ind.  525; 
Hopper  V.  Lucas.  86  id.  44. 

47  Harlow  v.  Ilaniilton,  6  How.  Pr.  475.  Nor  in  Texas.  Hall  v. 
Mackay.  78  Tex.  248. 

4S  Lafayette  Ins.  Co.  v.  French,  18  How.  <V.  S.)  404. 
40  Memphis  Medical  College  v.  Newton,  2  Handy,  163. 
50  Butcher  v.  Bank  of  Brownsville,  2  Kan.  70. 


515  JUDGMENTS.  §§  805-809 

§  805.  On  a  foreign  judgment  of  an  inferior  tribunal. 

For)ii  No.  ig6. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  hereinafter  mentioned,  J.  P.  was  a  Justice 

of  the  peace,  in  and  for  the  town  of ,  in  the  county 

of ,  and  state  of ,  having  authority 

under  and  by  virtue  of  an  act  of  said  state,  entitled  [title  of  act] , 

passed  on  the   day  of   ,  18.  .,  to  hold 

court,  and  having  jurisdiction  as  such  over  actions  of  [state 
jurisdiction  to  include  the  canse  of  action]. 

II.  That  on  the   day  of    ,  18.  .,  at 

,   aforesaid,   the   plaintiff   commenced   an   action 

against  the  defendant  before  the  said  justice,  by  filing  his  com- 
plaint, and  causing  summons  to  be  duly  issued  by  said  justice, 
on  that  day,  for  the  recovery  of  [state  what],  which  summons 
was  duly  and  personally  served  on  the  defendant. 

III.  That  on  the   day  of   ,  18.  .,  in 

said  action,  the  plaintiff  recovered  judgment,  which  was  duly 
given  by  said  justice  against  the  defendant,  for  the  sum   of 

dollars,   to-wit,    dollars   for   said 

debt,  with dollars  for  interest  from  the  said  date, 

and • dollars  costs. 

IV.  That  defendant  has  not  paid  the  same,  nor  any  part  therof. 

[Demand  of  Judgment.] 

§  806.  Action.  It  appears  that  the  action  of  indebitatus  as- 
sumpsit lies  on  a  judgment  of  a  justice  of  the  peace.^^ 

§  807.  Before  the  said  justice.  The  appropriate  mode  of 
pleading  a  judgment  of  a  justice  of  the  peace  is  to  allege  that 
it  was  recovered  "   Ijofore  him,"  not  "  in  his  court."  ^^ 

5  808.  Costs.  This  should  be  inserted  in  the  third  allegation, 
if  it  would  not  other\\'ise  appear  that  the  amount  of  the  debt 
did  not  exceed  the  jurisdiction.^^ 

§  809.  Designation  of  office.  It  is  necessary  in  rnlifornia,^'* 
or  in  Xow  ^'Drk.-'"'^  in  pleading  the  determination  of  an  ofticer 

fii  Orern  v.  Fry,  1  Cranoh  C.  C.  1.37. 

W  McCarthy  v.  Noble,  r>  N.  Y.  Lop.  Obs.  380. 

r-T  Smith  V.  Miiniford.  n  Cow.  20. 

r.i  Cal.  Codp  Civ.  Pro..  §  4.W. 

r-»  X.  Y.  Cwle,  §  532. 


§§810-8ll;l  FOKMS    OK    COMPLAINTS.  516 

of  special  jurisdit'tion,  to  dosignate  the  oliicer;  an  avenuont  that 
such  dctenuinatiou  was  duly  made  is  suiiicicnt.''" 

§  810.  Jurisdiction  of  person.  To  show  that  jurisdiction  over 
the  person  had  been  acquired,  it  is  necessary  lu  aver,  (^itliev  tliat 
the  party  appeared,  or  tliat  process  was  sued  out  ami  duly  served 
on  him.^^ 

§  811.  Jurisdiction  of  justice.  The  authority  under  which 
the  judgment  was  rendered  siiould  be  set  forth.''**  A  general 
allegation  that  the  justice  had  jurisdiction  is  not  enough.  The 
statute  giving  jurisdiction  should  be  pleaded.^'^  A  judgment 
against  the  plaintiff  for  costs  of  a  nonsuit  only,  is  an  exception 
to  this  rule.''^  But  such  facts  need  not  he  alleged,  as  residence 
of  defendant,  that  summons  was  returned,  that  return  was 
made  thereon,  that  time  of  day  was  specified  in  summons,  nor 
that  court  was  held  at  the  time  and  place  specified.^^  After 
stating  the  facts  on  which  jurisdiction  depends,  it  is  sufficient, 
without  seting  out  the  proceedings,  to  say,  "  such  proceedings 
were  had,"  that  plaintiff  recovered,  etc.^^ 

§  811a.  Judgment  against  garnishee — complaint.  In  an  ac- 
tion upon  a  judgment  rendered  against  a  garnishee  upon  pro- 
ceedings supplementary  to  execution  against  a  judgment  debtor, 
it  is  sufficient  to  aver  in  the  complaint  that  the  judgment  sued 
upon  was  "  duly  given  and  made,"  and  that  no  part  of  it  has 
been  paid,  and  it  need  not  aver  that  no  appeal  was  taken  from  the 
judgment,  nor  that  the  plaintiff  was  authorized  by  an  order  of 
court  to  institute  the  action. ^^ 

56  Carter  v.  Kaezley,  14  Abb.  Pr.  147.  The  form  of  alloj?ation, 
"  recovered  judgment,  which  was  duly  given,"  is  suggested  by  the 
court  in  Crake  v.  Cralie,  18  Ind.  15(>.  As  to  how  far  other  w^ords 
may  be  deemed  equivalent  to  "  duly  given,"  compare  Willis  v. 
Havemeyer,  .5  Duer,  447;  Hunt  v.  Dutcher,  13  How.  Pr.  ,5?,S.  If 
the  judgment  wa.s  rendered  in  a  Justice's  Court,  "  duly  "  must  be 
Inserted.  Thomas  v.  Robinson,  8  Wend.  2G<S;  Keys  v.  Grannis,  3 
Nov.  .548.  A  complaint  upon  the  judgment  of  a  justice  of  the 
peace  must  allege  that  it  was  "  duly  given  or  made,"  or  certain 
equivalent  allegalions.     Hopper  v.  lAicas,  86  Ind.  43. 

57  Cornell  v.  Barnes,  7  Hill,  35;  Quivey  v.  Baker,  37  Cal.  465. 

58  Stiles  V.  Stewart.  12  Wend.  473:  see  §  807,  ante. 

5»  Sheldon  v.  Hopkins,  7  Wend.  435;  Stiles  v.  Stewart,  12  id.  473; 
27  Am.  Dec.  142. 
«o  Turner  v.  Roby,  3  N.  Y.  193. 
«i  Barnes  v.  H.nrris.  4  N.  Y.  375:  3  Barb.  603. 

62  Turner  v.  Bol)y,  3  N.  Y.  193, 

63  Bronzan  v.  Drobaz,  93  Cal.  G47. 


CHAPTER   VIII. 

LIABILITIES   CREATED    BY    STATUTE. 

§  813.   Penalties  under  the  statute  —  general  form. 
Form  No.   19/. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18..,  at 

,  the  defendant    [here  state  acts  constituting  a 

violation  of  the  statute,  either  following  the  words  of  the  statute, 
or  setting  forth  the  facts  more  specifically]  against  the  form  of 
the  statute  [or  statutes,  as  the  case  may  be],  in  such  case  made 
and  provided.     [See  section  813,  below.] 

II.  That  hereby  the  defendant  became  indebted  in  the  sum 
of  [amount  of  penalty]  to  [one  for  whose  use  the  action  is 
given],  whereby  an  action  accrued  to  the  plaintiff  according  to 
the  provisions  of  [describing  the  statute  in  such  terms  as  the 
case  may  require] . 

[Demand  of  Judg^ient.] 

§  813.  Attorney  practicing  without  license.  An  attorney 
practicing  without  a  license  may  be  punished  as  in  other  cases 
of  contempt.  The  right  to  practice  is  not  "  property,"  nor  in 
any  sense  a  "  contract,"  within  the  constitutional  meaning  of 
those  terms. ^  The  right  to  practice  is  not  a  constitutional 
right,  but  a  statutory  privilege.  But  the  authority  of  an  at- 
torney to  appear  will  be  presumed  where  nothing  to  the  con- 
trary appears.^ 

§  814.  Copyright.  A  declaration  for  tlio  penalty  imposed  for 
jiiiljing  the  imprint  of  a  copyright  upon  a  work  not  legally  copy- 
righted, in  the  name  of  two  persons,  is  bad  on  general  demurrer.' 

1  Pohen  V.  Wriplit,  22  Oal.  20.3;  soe  Pooplo  v.  ISIcCabo.  IS  Col. 
ISO:  PiC,  Am.  St.  T^ep.  270;  Ex  parte  Ilanison.  112  Ind.  ^29. 

2ITay«'s  V.  Shattuc-k,  21  Cal.  T^^•,  Wilson  v.  Cloavoland.  .W  id.  192; 
TToliiir'8  V.  Ropei-s,  1.'',  id.  191;  Turner  v.  ranitliers.  17  Id.  431;  State 
r.  MinipfT  CX>.,  13  Nov.  20:;;  Vnrro  v.  r'ajrc  2S  Xei).  294. 

3Ff'rrott  V.  Atwill.  1  Blatdif.  1.^)1. 


§§  815-818  FORMS    OK   COMPLAINTS.  518 

§  815.  Failure  to  pay  assessment.  Tlu'  lailuro  of  ono  part- 
ner in  a  (litt'li  to  ])a}'  his  proportion  of  the  expenses  of  the  con- 
cern ih)es  not  forfeit  liis  right  in  the  common  property.^  Where 
forfeiture  is  ehvimed  under  a  mining  regukition  or  custom,  this 
regulation  or  custom  will  be  most  strictly  construed  under  the 
claim  of  forfeiture.'^ 

§  816.  Ferries  and  toll  bridges.  In  an  action  brought  to  re- 
cover damages  by  the  owners  of  a  licensed  feri-y  against  a  party 
alleged  to  have  run  a  ferry  within  the  limits  prohibited  by  law, 
it  was  held  that  the  com})laint  should  have  alleged  that  defend- 
ant ran  his  ferry  for  a  fee  or  reward,  or  the  promise  or  expecta- 
tion of  it,  or  that  he  ran  it  for  other  than  his  own  personal  use 
or  that  of  his  family,  and  that  the  omission  of  these  allegations 
was  fatal.^ 

§  817.  Forfeiture  under  statute.  When  a  forfeiture  is  purely 
the  creation  of  statute,  no  other  process  or  procedure  can  be 
made  use  of  to  enforce  the  forfeiture  than  that  wdiich  the  stat- 
ute prescribes.'^  In  an  action  to  enforce  a  penalty  or  forfeiture 
imposed  by  statute,  the  claim  is  to  be  strictly  construed.*  If 
there  be  any  rule  requiring  the  payment  of  a  debt,  the  rule  can 
not  apply  to  the  case  of  a  judgment  rendered  for  a  penalty  under 
the  penal  statute.^  An  action  founded  on  a  statute  to  recover 
a  penalty,  where  no  penalty  is  imposed,  can  not  be  sustained.''*' 
In  order  to  have  a  forfeiture  take  place,  there  must  be  some 
person  who  is  entitled  to  receive  the  benefit  of  the  forfeiture.^^ 

I  818.  Forfeiture  of  title  to  real  estate.  No  forfeiture  of  real 
estate  can  take  place  for  nonperformance  of  conditions  precedent 
or  subsequent,  unless  there  are  two  contracting  parties  who 

4  KLmball  v.  Gearhart,  12  Cal.  27. 

R  Colman  v.  Clements,  23  Cal.  24.5;  Wiseman  v.  McNulty,  25  id. 
230. 
6  Hanson  v.  Webb.  3  Cal.  236. 
V  Reed  v.  Omnilms  R.  R.  Co.,  33  Cal.  212. 

8  Askew  V.  Ebberts,  22  Cal.  203;  People  v.  Belknap,  58  Hun,  241; 
Hoeberg  v.  Ne\A-^on,  49  N.  .T.  L.  617;  People  v.  Utica  Cent.  Co.,  22 
111.    A  pp.    ir>9. 

9  Chester  v.  Miller,  13  Cal.  558. 

10  Board  of  Health  v.  Pacific  Mail  Steamship  Co..  1  Cal.  197. 

II  Wiseman  v.  McNulty.  25  Cal.  2.30.  How  far  the  strict  rules  of 
the  common  law.  as  to  pleadins  in  criminal  cases,  are  applica1)Ic  <o 
informations  for  forfeitures  in  rem,  considered  in  T.he  Palmyra,  12 
Wheat.  1. 


519  LIABILITIES   CREATED    BY    STATUTE.         §§  819-8^2 

have,  at  the  same  time,  or  successively,  au  interest  in  the  estate 
upon  which  the  condition  is  reserved.^^  Xo  forfeiture  accrues 
to  a  title  otherwise  good,  by  failure  to  present  it  to  the  board  of 
land  commissioners.^^  The  United  States,  after  the  treaty  of 
Guadalupe  Hidalgo,  did  not  become  vested  witli  any  authority 
to  prosecute  a  claim  for  forfeiture  or  escheat  that  had  accrued 
in  California  to  the  Mexican  government." 

§  819.  Gaming.  An  allegation  in  a  complaint  that  the  parties 
kept  a  saloon  for  the  purpose  of  gaming,  and  selling  liquors  and 
cigars,  does  not  raise  the  presumption  that  the  gaming  was  neces- 
sarily unlawful,  or  that  the  saloon  was  a  common  gaming-house, 
as  the  word  might  apply  to  lawful  games,  as  billiards,  etc.^^ 

§  820.  Marks  and  brands.  That  in  an  action  for  a  penalty 
for  altering  the  inspectors  marks  on  barrels  of  flour,  it  is  neces- 
sary to  set  out  the  marks  and  the  manner  of  the  alteration.^*^ 

§  821.  Office  and  officers.  In  an  action  against  an  officer  to 
recover  a  penalty  imposed  by  a  general  statute,  it  is  sufficient 
to  refer  to  such  statute,  though  the  particular  duty  in  question 
was  created  by  a  subsequent  statute.-''^ 

§  822.  Railroad  companies  —  excessive  fare.  In  an  action 
against  a  railroad  company  for  breach  of  duty  by  such  com- 
pany in  not  conveying  a  passenger,  it  is  not  necessary  for  y>lain- 
tiff  to  allege  in  his  complaint  a  strict  legal  tender  of  his  fare.^^ 
It  is  sufficient  to  allege  that  plaintiff  was  ready  and  willing,  and 
offered  to  pay  such  sum  of  money  as  the  defendant  was  legally 
entitled  to  charge.  The  transportation  and  payment  of  the  fares 
are  contemporaneous  acts.^'^  In  an  action  against  the  ISTew 
York  Central  Railroad  Company,  to  recover  a  statutory  penalty 
for  exacting  an  excessive  fare,  it  was  held  that  it  was  not  neces- 
sary that  the  complaint  should  set  out  the  various  enactments 
consoliflating  the  several  companies  which  make  up  the  New 
York  Contrnl  T?ailroad  Company  so  as  to  sho^v  that  the  latter 

12  Wiseman  v.  MfNiiIty,  2r>  Ca.].  2P,Ct. 

J3r,retfnry  v.  MfPluTSon,  l.'i  Tal.  .^02. 

14  reoi)h'  V.  Folsoin,  r>  Cal.  373. 

J''  Wliiiiley  V.  Flower,  0  Cal.  032;  <'C*  Am.  Deo.  547. 

inrioiul  V.  TTewett.  3  Crancli  C.  C.  199. 

17  >rnnlR  V.  Pooplo.  3  Den.  3S1. 

iRTarboll  v.  C.  P.  K.  K.  Co.,  34  f'al.  OIG. 

10  Id. 


<<  s->3-S".>5  I'OKMS    UK    rOMl'LAlNTS.  520 

company  is  re^itricted  to  a  I'aiv  oi'  two  eonts  per  mile  for  each  pus- 
songer;'but  that  it  was  enough  to  allege  that  the  defendants  had 
boon  duly  organi/A'd.  that  they  were  enlitletl  to  (U'uiaiul  and  re- 
ceive of  passengers  a  certain  rate  of  fare,  and  that  they  had  de- 
manded and  received  a  higher  rate.-"  A  complaint  in  an  action  by 
a  shipper  against  a  carrier,  which  substantially  alleges  that  for  the 
same  quantity  and  character  of  freight  the  plaintilf  was  charged 
a  greater  amount  for  transportation  from  the  same  point  than 
another  merchant,  but  which  does  not  allege  that  the  charge  to 
the  plaintilf  was  unreasonable  and  excessive,  does  not  state  a 
cause  of  action  at  common  law,  and  an  allegation  of  discrimina- 
tion or  inequality  is  not  the  equivalent  of  an  allegation  of  an 
excessive  charge.^^ 

§  823.  Telegraph  messages.  Where  the  telegraph  company 
fails  to  transmit  a  message,  upon  compliance  by  the  person  con- 
tracting with  it  with  the  conditions  required  by  law,  an  action 
lies  for  the  penalty-^^  And  the  party  who  contracts  is  entitled 
to  the  penalty.^ 

§  824.  Theatrical  exhibitions.  A  complaint  which  charges 
that  the  defendant  "did  willfully  and  unlawfully,  on  tJie  fir.^t 
day  of  the  week,  commonly  called  Sunday,  to-wit,  on  the  Sab- 
bath day,  get  up,  and  in  getting  up  and  opening  of  a  theater," 
contains  a  sufficient  statement  of  the  facts  constituting  the 
offense  of  getting  up  a  theater  on  the  Sabbath  day.-* 

§  825.  Statutory  action  —  allegations.  In  an  action  on  a  stat- 
ute, the  party  prosecuting  must  allege  every  fact  necessary  to 
make  out  his  title  and  his  competency  to  sue.^^     Thus,  where 

20  Nellis  V.  New  York  Cent.  K.  Jl.  Co.,  30  N.  Y.  .105. 

21  Cowden  v.  Pae.  Coast  S.  S.  Co.,  04  Cal.  470;  28  Am.  St.  Rep. 
142. 

22Thurn  v.  Alta  Tel.  Co..  l.o  Cal.  472. 

23  Id. 

24  People  V.  INIntjuire,  2G  Cal.  v.^'r,  for  eomplaint,  see  People  v. 
Koll,  3  Keyes,  236. 

25  Fleming  v.  Bailey,  n  East.  313;  4  Johns.  193;'  Bigelow  v.  .John- 
son. 13  id.  428;  Fairbanks  v.  Town  of  Antrim,  2  N.  H.  10.5;  Forrett 
V.  Atwill,  1  Blatclif.  151;  Austin  v.  Goodrich,  49  N.  Y.  26G.  The 
es.spntial  facts  must  be  alleged,  and  not  left  to  be  inferred.  State 
V.  Railroad  Co..  76  Me.  411.  In  order  to  maintain  a  statutory  action 
it  is  necessary  to  show  a  striot  compliance  with  the  requirements 
of  the  statute.  Martin  v.  Pittman.  3  Col.  App.  220.  In  an  action 
\mder  the  Colorado  statute  (Session  Laws,  1887,  p.  2.38),  to  deter- 


521  LIABILITIES    CKEATED    BY    STATUTE.  §  826 

the  statute  giving  the  cause  of  action  prescribes  what  tlie  plaiii- 
tiif  shall  state  in  his  complaint,  and  requires  a  reference  to  be 
made  to  the  statute,  the  requirement  must  be  complied  with  or 
the  plaintiff  can  not  recover.^  But  if  a  statute  gives  a  new  de- 
fense, or  authorizes  the  introduction  of  evidence  not  previously 
admissible,  the  defendant  may  so  shape  his  pleas  as  to  avail 
himself  of  the  benefits  of  the  new  law,  and  the  old  rules  of 
pleading  must  yield  to  the  statute. ^'^ 

§  826.  Penal  statutes  —  allegations  in  actions  on.  In  penal  ac- 
tions founded  on  a  statute,  a  reference  to  the  statute  is  usually, 
but  not  necessarily,  made^  for  the  purpose  of  informing  the 
defendant  distinctly  of  the  nature  and  character  of  the  offense.^^ 
And  in  cases  where  no  general  form  of  complaint  is  given,  the 
plaintiff  must  set  forth  the  particular  acts  or  omissions  which 
constitute  the  cause  of  action.^*^  But  omitting  to  refer  to  the 
statute  is  a  defect  of  form  only.^^  In  declaring  on  a  penal 
statute,  it  is  sufficient  to  pursue  the  words  of  the  statute,  and  not 
essential  to  conclude  "  against  the  form  of  the  statute."^^  The 
declaration  must  aver  that  the  act  complained  of  was  done  con- 
trary to  the  stattite.^^  A  declaration  founded  exclusively  upon 
a  statute,  and  not  maintaina])le  at  common  law.  must  conclude 
"  against  the  form  of  the  statute."^*     A  declaration,  if  founded 

mine  anrl  settle  a  disputed  boundary  lino  Ix'tween  counties,  after 
one  has  been  nin  out  and  estfi1)lislied  by  the  state  engineer,  the 
complaint  must  contain  afflnnativc^  and  positive  allegations  show- 
ing the  prooeedlnjrs  to  have  been  such  as  to  confer  jurisdiction. 
Routt  County  v.  Grand  Ciounty,  4  Col.  App.  R0(>. 

20  Schroeppell  v.  Corning:.  2  N.  Y.  132;  and  see  Avery  v.  Slack,  17 
Wend.  8:j. 

27  Cutts  V.  Hardee,  .38  Oa.  350. 

2«'Rrown  v.  Harmon,  21  Rarb.  .'in. 

29  Shaw  V.  Tobias.  3  N.  Y.  IDO. 

■■'o  Slack  V.  Avery,  17  Wend.  KG;  People  v.  Rrooks,  4  Den.  469; 
RI;relow  v.  .lohnsoii,   13  .Tohns.  42S. 

31  O'Maley  v.  Reese,  0  Rai-b.  (mS.  A  complaint  to  recover  a 
statutory  penalty  wliich  states  facts  constitutiiifr  a  catise  of  action, 
need  not  refer  to  the  statute,     diadem  v.  Iloldrese,  4  Col.  App.  12(i. 

32  People  V.  Rai-tow,  0  Cow.  20'»;  Lee  v.  Clark.  2  East.  3.33. 

33  Parker  v.  Hawoi-th,  4  McLean.  373.  That  the  statute  must  be 
refen-cd  to  witli  certainty,  see  \.  Y.  Code  Civ.  Pro..  §  1807;  Fish 
V.  Manning.  31  Fed.  Rep.  .340;  People  v.  Railway  Co.,  CA  Mich.  (ilK. 

34  Chit.  PI.  240.  4(>ry;  Sears  v.  T'nited  States.  1  Call.  2.'7;  Smith  v. 
T'nited  States,  id.  2(51;  1  Saund.  13.'">,  note;  .Tones  v.  Vanzandt.  2 
McLean,  fill.  '^Pliat  it  is  essential,  see  Sears  v.  T'nited  States,  1  Gall. 
257. 

66 


^  S'^l)  I'UIJ.MS    OF    COMri.AINTS.  Q'Z'Z 

on  an  amoiulatory  act,  whii'li  rclors  to  and  contains  a  former 
oue,  should  conelndo  "  against  the  statute,"  and  not  "  statutes."^^ 
A  complaint  on  a  penal  statute  need  not  aver  the  uses  to  which 
the  forfeiture  is  to  be  applied.^*' 

Where  a  number  of  ])enalties  are  incurred  in  one  act,  they 
may  all  be  included  in  one  count.  Jn  an  action  against  an 
officer  to  recover  a  penalty  imposed  by  a  general  statute  for  any 
neglect  or  refusal  to  perform  a  duty,  it  is  enough  to  refer  to 
such  statute,  though  the  particular  duty  in  tiuestion  was  created 
by  a  subsequent  statute.^^ 

Where  a  penalty  is  given  by  statute  and  no  remedy  is  pro- 
vided, debt  will  lie.-'*^  And  this  although  it  is  uncertain.^'-^  In 
an  action  for  debt,  brought  to  recover  several  penalties  (under 
section  1  of  the  act  of  1790),  against  the  master  of  a  vessel  for 
shipping  seamen  without  articles,  a  single  count  for  all  the 
penalties  is  sufficient-^"  So,  also,  if  an  agreement  contain  a 
penalty,  the  plaintiff  may  bring  debt  for  the  same  and  for  no 
more,  or  covenant,  and  recover  more  or  less  damages  than  the 
penalty;  ^'^  and  for  several  penalties  incurred  in  one  act,  plaintiffs 

^^  Falconer  v.  Campbell,  2  McLean,  195. 

•■!'■•  Sears  v.  United  States,  1  Gall.  257.  Nor  need  it  allege  to  whom 
the  peualtj'  is  to  go.  State  v.  Willis,  78  Me.  70;  State  v.  Thrashei-, 
79  id.  17.  And  nonpayment  of  the  penalty  need  not  be  alleged. 
Western  Union  Tel.  Co.  v.  Young,  93  Ind.  118.  Sufficiency  of  a 
complaint  following  the  language  of  the  statute  as  to  a  forfeiture. 
See  State  v.  Adams,  78  Me.  48G;  State  v.  Owsley,  17  Mont.  94. 
Complaint  in  action  for  penalty  for  failure  by  directors  of  corporation 
to  file  annual  reports.  Rose  v.  Ohadwick,  41  N.  Y.  Supp.  190;  9 
App.  Div.  311;  or  to  post  monthly  reports.  Chapman  v.  Doray, 
89  Cal.  52. 

37  Mon-is  V.  People,  3  Den.  381.  For  exacting  excessive  fare  on 
railroad.  Nellis  v.  New  York  Cent.  R.  R.  Co.,  30  N.  1.  505.  Com- 
plaint against  railway  company  for  not  ringing  bell  on  approaching 
a  crossing.    See  Wilson  v.  Roch.  &  Syr.  R.  R.  Co.,  16  Barb.  167. 

3S  .Jacob  v.  T'nited  States.  1  Brock.  Marsh,  520;  City  of  Chicago 
v.  Enright,  27  111.  App.  559.  It  has  been  held  that  penalties  may  be 
recovered  l)y  indictment  or  information,  where  this  mode  is  not 
excluded  by  statute.  State  v.  Railroad  Co.,  89  Mo.  562;  United 
States  v.  Howard,  17  Fed.  Rep.  6.38;  United  States  v.  Orant,  55 
id.  414. 

39  Corporation  of  Wasliington  v.  Eaton,  4  Cranch  C.  C.  352. 

40  People  V.  M'Fadden,  13  Wend.  .396;  Wolverton  v.  Lacy,  8  Law 
R.  CS.  S.)  672. 

41  Martin  v.  Taylor,  1  Wash.  C.  C.  1. 


523  LIABILITIES   CREATED    BY    STATUTE.  §  82'? 

may  declare  generally  in  one  count.'*-  But  only  one  penalty 
can  be  enforced  for  the  same  act.'*^  Thus,  under  an  ordinance 
forbidding  both  the  sale  of  a  thing  and  its  exposure  to  sale,  a 
single  act  of  selling  can  not  be  separated  so  as  to  impose  therefor 
two  penalties.  In  case  of  an  actual  sale,  the  exposure  to  sale 
is  merged  in  the  sale.^^  Where  two  or  more  concur  in  the  act 
of  aiding,  and  but  one  penalty  attaches,  they  may  be  sued  to- 
gether.^^  In  an  action  for  a  statute  penalty,  intent  to  violate 
the  law  must  be  shown;  but  a  neglect  may  be  so  gross  as  to 
amount  to  a  criminal  intent.*'^  The  repeal  of  a  law  imposing 
a  penalty  determines  the  action.^''^ 

§  827.  Provisos  and  exceptions.  It  is  a  general  rule,  that  in 
pleading  under  a  statute,  it  is  sufficient  to  use  the  language  of 
the  statute,  and  though  there  are  exceptions  requiring  specitic 
facts  to  be  stated  where  general  language  is  used  in  the  statute, 
yet  it  is  not  necessary  in  a  civil  proceeding  to  add  to  the  language 
of  the  statute  other  general  language,  which  does  not  make  ilie 
pleading  any  more  specific,  because  such  other  language  was 
technically  required  in  a  common-law  indictment.^*  But  when 
a  pleading  is  filed  under  a  statute  where  there  is  an  exception  in 
the  enacting  clause,  it  must  negative  the  exception;  but  where 
there  is  no  exception  to  the  enacting  clause,  but  an  exception 
in  the  proviso  thereto,  or  in  a  subsequent  section  of  the  act,  it  is 
matter  of  defense  and  must  be  shown  by  the  defendant.^^  A 
public  statute  need  not  be  recited  or  referred  to  in  pleading,  and 

42  People  V.  IM'Fadden.  13  Wend.  396. 
43Driskill  V.  rarlsh,  3  McLean,  fi31. 

44  City  of  Brooklyn  v.  Toynbee.  31  Barb.  282. 

45  Partridge  v.  Naylor,  Cra.  F:iiz.  480;  F.  Moore.  4r)3;  Rex  v. 
Clark,  Cowp.  610;  Barnard  v.  Cosllinfr,  2  East,  500;  Warren  v.  Doo- 
lltllo.  5  Cow.  r,-R;  compare  Marsh  v.  Shute,  1  Den.  230;  InsersoII 
V.  Rkinnor,  id.  .^40;  Mayor  of  Now  York  v.  Ordronan,  12  Johns.  122; 
see,  also,  Palnu-r  v.  Conly,  4  Den.  374. 

4«Rtnrp:PS  v.  Maitland,  Anth.  N.  P.  208. 

47  People  ex  rcl  Cook  v.  Board  of  Police,  40  Barb.  020;  16  Abb. 
Pr.  473. 

4«  .Tan-is  V.  Hamilton,  10  Wis.  "4. 

40  Washburn  v.  Franlvlin,  28  Barb.  27;  Crrat  Western  B.  B.  Co. 
V.  ITanka,  30  III.  281;  Lynrii  v.  Pooi)l(\  10  Mioh.  472;  Faribault  v. 
TTiiloft.  10  Minn.  30;  CIoukIi  v.  Sliejilierd,  31  N.  H.  400;  IMoClonO 
V.  Prosser.  21  Wis.  273;  but  seo  Farwoll  v.  Smith,  10  N.  .T.  L.  (T 
Harr.)  133.  Xfirativinix  oxfoptio'i  in  statnte.  Fisli  \.  Mannint?, 
31  Fed.  Bep.  340;  Bowfll  v.  .Tanvrin,  I.''.!  X.  Y.  00;  People  v.  BripgS, 
114  id.  50. 


§§  8:^8-830  rouMS  of  comi-laixts.  524 

all  I  hat  sooiii^  material  is  that  oiiougli  be  stated  to  bring  the  ease 
\\ilhin  the  statute-^" 

g  828.  Statutes,  how  proved.  As  to  whether  an  act  is  passed 
by  the  requisite  vote,  the  ])rinted  statutes  are  presumptively  cor- 
rect, and  the  original  on  tile  couclusive.^^ 

§  829.  Venue  in  California.  Actions  for  the  recovery  of  a 
penalty  or  forfeiture  imposed  by  statute,  shall  be  tried  in  the 
county  where  the  cause,  or  some  part  thereof,  arose,  subject  to 
the  power  of  the  court  to  change  the  place  of  trial.^^ 

§  830.   For  selling  liquor  without  a  license. 

Form  No.   198. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   '. day  of   ,  18. .,  at 

,  the  defendant  sold  to  one  A.  B.  [or  to  divers  per- 
sons] strong  liquors  [or  spirituous  liquors,  or  wines],  in  quanti- 
ties less  than  by  the  bottle  [or  otherwise,  according  to  the  terms 
of  the  ordinance  or  statute]. 

II.  That  the  defendant  had  not  then  a  license  to  sell  liquors, 
as  required  by  the  act  entitled  "An  act,"  etc.  [giving  title  of  act 
in  full],  passed  on  the day  of ,  18 .  . 

III.  That  thereby  the  defendant  became,  and  is  indebted  to 

the  plaintiff  in  the  sum  and  penalty  of dollars,  for 

said  act  of  selling  [or,  each  and  every  of  said  acts  of  selling], 
whereby  this  action  has  accrued  to  the  plaintiff,  according  to 
the  provisions  of  said  act,  for  the  said  sum  of dol- 
lars [or  if  more  than  one  penalty  is  claimed,  for  the  aggregate 
amount  or  sum  of dollars]. 

[Demand  of  Judgment.] '^^ 

soMcHapgr  V.  Eastman.  7  Roht.  1S7:  S.  C.  n.5  How.  Pr.  20.'>;  Bretz 
V.  Mayor,  3.5  id.  130;  S.  C,  4  Abl>.  Pr.  (N.  S.)  258;  reversing  3  Abb. 
Pr.  (N.  S.)  478;  see  §  .''.29.  ante. 

f'l  People  ex  rel  v.  Commissioners  of  Highways,  54  N.  Y.  270; 
13  Am.  Rep.  .581;  People  v.  Devlin,  33  N.  Y.  269;  86  Am.  Dec.  375. 

r.2  Cal.  Codo  Civ.  Pro..  §  393. 

•"••T  For  anotlier  form,  see  People  v.  Bennett,  5  Abb.  Pr.  384;  also, 
State  V.  Railway  Co..  89  Mo.  562.  To  follow  the  words  of  the  act 
Is  sufficient.  See  Cole  v.  .TessTip.  10  N.  Y.  96;  10  How.  Pr.  515.  The 
general  allegation  that  the  sale  was  made  "  unlawfully "  and 
"  contrary  to  law,"  is  not  sufficient.  Village  of  Cortland  v.  Howard, 
37  N.  Y.  Snpp.  843. 


5:^0  LIABILITIES   CREATED    BY    STATUTE.        §§  831,  832 

§  831.  Against  a  witness,  for  disobeying  subpoena. 
Form  No.   199. 
[Title.] 

I.  That  on  the   day  of  ,  18 .  . ,  at 

,  the  plaintiff  caused  the  defendant  to  be  duly 

sensed  with  a  subpoena  commanding  him  to  attend  as  a  Avdtness? 

in court,  in  and  for  the  county  of ,  m 

this  state,  on  the day  of ,  18 .  .,  there  to 

give  testimony  on  behalf  of  the  plaintiff  in  an  action  in  said 
court  pending,  wherein  this  plaintiff  was  the  plaintiff,  and  one 
C.  D.  was  defendant  [or  otherwise  designate  the  proceedings] . 

II.  That  at  the  same  time  the  plaintiff'  caused dol- 
lars, the  lawful  fees  of  the  said  witness,  to  be  paid  [or  tendered] 
to  him. 

III.  That  defendant  failed  to  attend  as  commanded,  whereby 
the  defendant  became  indebted  to  the  plaintiff  in  the  amount  of 

dollars,  according  to  the  provisions  of  the  statute 

[describe  the  statute]. 

TV.  That  by  reason  of  the  premises,  the  defendant  forfeited 
to  the  plaintiff  the  sum  of dollars. 

[If  special  damages  are  claimed,  add:]  V.  And  for  a  second 
cause  of  action,  the  plaintiff  alleges  that  because  of  the  said 
failure  of  the  said  defendant  to  attend  said  trial  as  such  witness 
as  aforesaid,  the  plaintiff,  when  said  action  was  called  for  trial, 
was  compelled,  for  want  of  the  testimony  of  said  defendant,  with- 
out whose  testimony  he  could  not  safely  proceed  to  the  trial 
of  said  action,  to  move  the  said  court  to  continue  the  said  action: 
and  the  said  court  did  continue  the  same,  and  the  plaintiff  was 
coripf-lled    to     pay    on    said    continuance,    as    costs    thereof, 

dollars,  which  sum  he  was  so  compelled  to  pay  by 

reason  of  the  said  failure  of  the  said  defendant  to  atterirl  as  such 
witness  as  aforesaid,  to  the  damage  of  the  plaintiff  in  the  said 

sum  of dollars. 

[Demand  of  Judgment.] 

8  832.  Witness  refusing  to  answer.  An  action  lins  at  common 
law  against  a  witness  rr-fusing  to  answer  or  attond  under  a  sub- 
poena.''^ The  complaint  must  aver  that  the,  witness  fees  were 
paid  or  tendered  to  him.^'''  It  would  seem  thnt  a  !?enernl  allega- 
tion that  he  was  letrnlly  subpoenaed  is  insuflicient.^" 

B'*  Klntr  V.  TliP  Tnli.'iliitnnfs.  fir.,   poiiirl.   ^^(\^ :  Oorliaiii   v.   Tliomp- 
Bon.  Prako.  CO;  Wninor  v.   T.iu-as,  10  Oliio.  .'WO. 
Bn  MfKenn  v.   Lane,   1    Hall,   356. 
CO  Id. 


g§  833,  834  lOiiMs  01-   com  plaints.  526 

§  833.   For  violation  of    ordinance  of    board  of    supervisors. 

form   No.   200. 

[Title.] 

The  plaintilT  complains,  and  alleges: 

I.  That  on  or  about  tlie day  of >  18.  ., 

the  board  of  supervisors  of  the  county  of ,  in  pur- 
suance of  the  power  in  them  vested  l)y  law,  passed  a  law  entitled 
'•  An  order,  regulation  or  ordinance,"  etc.  [giving  title  of  the 
saniej  a  copy  of  which  is  annexed  as  a  part  of  this  complaint. 

II.  That  since  the  passing  thereof,  to-wit,  on  the   

day  of   ,  18.  .,  the  defendant   [here  state  fully 

wherein  the  defendant  has  disobeyed  the  order],  contrary  to  the 
provisions  of  the  said  ordinance  above  mentioned. 

III.  That  by  reason  of  the  premises,  the  defendant  forfeited 
to  the  plaintiff  the  sum  of dollars. 

[Demand  of  Judgment.] ^'^ 

§  834.  Essential  allegations.  In  general,  the  by-laws  of  all 
corporate  bodies,  including  municipal  corporations,  must  be  set 
forth  in  pleading,  when  they  are  sought  to  be  enforced  by  an 
action,  or  set  up  as  a  protection.^*  In  Indiana  a  copy  of  the 
by-law  or  ordinance  should  be  made  a  part  of  the  complaint.^® 
But  the  authority  to  enact  may  be  averred  in  general  terms.^ 

57  This  is  substantially  the  form  of  the  complaint  in  Smith  v. 
Levinus,  8  N.  Y.  472. 

f'8  Wile,  on  Mun.  Corp.,  Part  1,  §  430;  Harker  v.  Mayor,  etc.,  of 
New  York,  17  Wend.  199;  People  v.  Mayor,  etc.,  of  New  York,  7 
How.  Pr.  81;  see  Kehlenbeoli  v.  Logeman,  10  Daly,  447. 

50  Green  v.  Indianapolis,  22  Ind.  192.  But  imder  section  3066, 
Revisetl  Statutes  of  1881,  it  is  sufficient  to  recite  the  number  of  the 
section  of  the  ordinance  violated,  without  setting  it  out.  City  of 
Frankfort  v.  Aughe,  114  Ind.  77;  City  of  Elkhart  v.  Calvert,  126 
id.  6;  see,  also,  City  of  Durango  v.  Reinsberg,  16  Col.  327. 

60  Stuyvesant  v.  Mayor  of  New  York,  7  Cow.  603. 


CHAPTEK  IX. 

FOR  MONEY  HAD  AND  EECEIVED  TO  PLAINTIFF'S  USE. 

§   835.   Common  form. 

Form  No.  201. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of   ,  18. .,  at 

,  [or  at  sundry  times  between  the day  of 

,  18 .  . ,  and  the   day  of   , 

18.  .,  at   ],  the  defendant  received  the  sum  of 

dollars  from  one  A.  B.,  to  and  for  the  use  of  the 

plaintiff. 

II.  That  thereafter,  on  the   day  of  , 

18.  .,  [or  before  the  commencement  of  this  action],  the  plain- 
tiff demanded  payment  thereof  from  the  defendant. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof  [except,  etc.]. 

[Demand  of  Judgment.]  ^ 

§  836.  Demand.  It  is  not  necessary  that  the  plaintiff,  in  an 
action  for  money  received  by  defendant  for  his  use,  should  make 
a  demand  before  suit,  where  it  was  the  duty  of  the  defendant  to 
have  remitted  the  money.^  No  demand  is  necessary  before  ac- 
tion brought  to  recover  back  an  illegal  tax;^  so  of  moneys  col- 
lected by  sheriff.* 

1  In  those  cases  where  demand  is  not  necessary,  the  second 
paragraph  may  be  omitted.  Whore  a  demand  is  necessary  to 
rliarpe  the  defendant  with  interest,  the  date  of  tho  demand  should 
bf  In.serted.  Nature  of  action  for  money  had  and  received.  See 
riiai)man  v.  Forl»es.  12.'',  X.  Y.  r^?,2\  Ilobei-ts  v.  Ely.  llf?  id.  12S: 
I-aflln  V.  IIowo,  112  111.  2'^?,. 

2  Stacy  V.  r.rahani.  14  X.  Y.  402:  Howard  v.  France.  A?,  id.  .mS; 
Keyser  v.  Shafer.  2  C?oav.  437;  W.-irdcn  v.  Xolan.  10  Ind.  Ai)p.  3.34; 
Quimby  v.  Lyon,  0.3  Cal.  304;  White  Pine  Counly  Banlv  v.  Sndlor, 
19  Xev.  ns. 

8  Newman  v.  Supervisors  of  T-iviiifrslon  County.  AV)  N.  Y.  G76 
4  Nelson  v.  Kerr,  .no  X.  Y.  224. 


g  So7  rOUMS    OF   C03IPLA1NTS.  SJJS 

§  837.  Essential  averments.  The  common  allegation  that  the 
del'eudaiit  received  money  "  I'or  the  use  oi'  the  plaintillV"  is 
open  to  the  objection  on  the  ground  of  its  indehnitenetJS.  In 
some  cases  it  has  been  held  bad  on  demurrer.''     A  complain L 

which  avers  "  that  the  defendant  received  a  sum  of 

dollars,  belonging  to  or  on  account  of  the  plaintiff,  and  which  is 
now  due  him,"  states  facts  sullicient  to  constitute  a  cause  of  ac- 
tion.**  Thus,  where  the  complaint  charges  that  A.,  being  in- 
debted to  the  plaintiff  in  a  sum  of  money,  it  was  agreed  between 
the  plaintilf  and  defendant  that  A,  should  pay  the  same  to 
plaintilf  at  the  request  of  plaintiff,  and  thereafter  A.  paid  to  de- 
fendant said  sum  in  gold  coin  of  the  United  States  and  for  the 
use  and  benefit  of  plaintiff,  tlie  defendant  refused  to  pay  the 
same  to  the  plaintiff  upon  request  duly  made,  an  action  to  re- 
cover said  sum  in  gold  coin  is  an  action  for  money  had  and  re- 
ceived, and  defendant  is  not  charged  as  a  bailee.'^ 

When  a  person  recovers  the  money  of  another,  and  applies  it 
to  his  own  iise,  the  law  implies  a  promise  to  repay  it.^  Where 
one  receives  at  the  request  of  another  a  sum  for  a  third  person, 
with  directions  to  pay  the  same  over,  it  is  equivalent  to  an  ex- 
press promise  to  pay  the  same,  and  the  latter  may  maintain  an 
action  for  money  had  and  received.^  And  no  consideration 
need  be  shown. ^'^  Where  one  receives  the  money  of  another, 
and  has  not  the  right  conscientiously  to  retain  it,  a  privity  be- 
tween the  true  owner  and  the  receiver  will  be  implied,  as  well  as 
a  promise  to  pay  it.^^  Such  implied  promise  to  pay  is  a  fiction 
which  need  not  be  alleged.^^  The  complaint  must  plead  facts 
showing  that  the  money  justly  belonged  to  the  plaintiff.^^  And 
it  must  allege  the  failure  of  the  defendant  to  pay  the  money, 

c  Lienan  v.  Lincoln,  2  Duer,  670. 

6  Betts  V.  Bache,  14  Abb.  Pr.  279. 

7  WeiKlt  V.  Ross,  33  Cal.  650. 

8  Dumond  v.   Cai-penter.  3  .Tohns.  183. 

9  Weston  V.  Barker,  12  .Tohns.  276;  7  Am.  Dec.  319;  Therusson  v. 
McSpedon,  2  Hilt.  1;  Delaware,  etc.,  Co.  v.  Westchester  County- 
Bank,  4  Den.  97;  but  see  Sfeaman  v.  Whitney,  24  Wend.  260;  35  Am. 
Dee.  618;  Turk  v.  Ridse,  41  N.  Y.  201;  and  Williams  v.  Everett,  14 
East,  590,  where  distinctions  are  taken. 

in.Tudson  v.  Gray,  17  ITow^  Pr.  289;  Berryv.  Mayhew,  1  Daly,  54. 
11  Canssidiere  v.  Beers,  2  Keyes.  198. 

i2p,yxbie  v.  Wood,  24  N.  Y.  607:  see  Roldan  v.  Power,  35  N,  Y. 
Snpp.  697. 
13  Buplianan  v.  Berk,  15  Ores.  503. 


529  MOJfEY  HAD  Ai^D  RECEIVED  TO  PLAINTIFF'S   UiSE.       §  S'6S 

which  constitutes  the  breach  of  the  contract,  and,  failing  to 
make  such  averment,  it  is  insufficient  as  a  complaint  for  money 
had  and  received.^-*  But  a  complaint  which  alleges  a  demand 
of  payment  of  the  amount  sued  for,  and  that ''  defendant  has  re- 
fused, and  still  refuses,  to  account  for  or  pay  the  same,  or  any 
part  thereof,"  while  subject  to  special  demurrer  for  not  definitely 
and  certainly  alleging  nonpayment  of  the  money,  does  not  so  en- 
tirely fail  to  allege  nonpayment  a^s  to  be  subject  to  a  general 
denmrrer  for  not  stating  facts  sufficient  to  constitute  a  cause  of 
action.^^  A  common-law  count  for  money  had  and  received  is 
proper  in  an  action  to  recover  a  deposit  of  money  wrongfully 
obtained  from  the  plaintiff  by  the  defendants,  and  which  they 
wrongfully  refused  to  pay  the  plaintiff  upon  demand.^^  A 
complaint  which  alleges  a  request  to  expend  money,  and  a 
promise  to  repay  what  should  be  expended  as  requested,  and 
a  compliance  with  the  request  is  sufficient  as  against  a  general 
demurrer." 

§  838.  Nature  of  the  action  —  when  it  lies.  The  general  rule 
is,  that  an  action  for  money  received  lies,  whenever  money  has 
been  received  by  tJie  defendant,  which  ex  aequo  et  bono  belongs 
to  the  plaintiff  ;^^  or  which  in  equity  and  conscience  he  has  no 
right  to  retain/*'  whether  there  be  any  privity  between  the  parties 
or  not.  For  it  has  been  held  there  need  be  no  privity  of  con- 
tract between  the  parties,  in  order  to  support  this  action,  ex- 
cept that  which  results  from  one  man's  having  another's  money, 
which  he  has  not  a  right  conscientiously  to  retain.^^  In  an  au- 
thoritative case  it  has  been  decided  that  this  action  lies:  1. 
Wherever  the  defendant  has  received  money  which  ho  is  bound 
in  justice  and  equity  to  refund:  2.  Where  an  agent  is  not  the 
mere  carrier  or  instrument  for  transmitting  the  fund,  but  has 
the  power  of  retaining  it,  and  before  he  has  paid  over  the  money, 

14  LnnfloTi.  etc..  F.  Tns.  Co.  v.  TJobcs,  10.5  Cal.  203. 

ifi  r.rant  v.  Rlieorin,  S4  Cal.  197. 

1*^  Dasliawjiy  Assoc,  v.  Ropers,  70  Cal.  211. 

iT.Taffe  V.  Lilipnt]ial.  80  Cal.  91. 

i«Tutf  V.  Ido,  .-!  Blalohf.  249. 

">Kreutz  v.  Livinpston,  1.5  Cal.  344. 

2«:\rason  V.  Wait*'.  17  Mass.  .">(',():  lUiel  v.  Bonphton,  2  Den.  91; 
T.ofkwood  V.  Kclsra.  41  X.  H.  ISH;  see,  also.  Webb  v.  Moyers,  64 
Hnn.  11:  TM-akf  v.  Wlialoy.  •''.•"►  S.  C.  1S7:  AA^alkor  v.  Conant,  e^^^  IMioh. 
194:  National  Rank  v.  ITare,  IS  III.  App.  1S2:  Wliile  Pino  County 
Bank  v.  Sadler,  19  Xrv.  9S;  Sparrow  v.  ITosark,  -10  (^liio  St.  2.53; 
McDonald  v.  T.nnd.  V.\  AVasli.  St.  412;  Seeliorn  v.  Hall,  130  Mo.  257; 
Duncanson  v.  Walton.  Ill  Cal.  510. 

Vol.  T— fi7 


§  831)  I'UK.MS    OF    CU.MI'LAIXTS,  630 

has  ivcoivoil  notice  of  [\iv  |il;uii(ilV*s  claim,  and  a  warning  not  to 
part  witJi  the  fund;  'A.  Where  there  existij  a  privity  between  the 
pUiintiir  and  del'endaut.-,^ 

S  839.  The  same  —  duress  —  protest.  That  money  extorted  un- 
der duress  may  be  recoveri'd  back  in  this  form  of  action  has 
been  long  established.  In  such  action  the  complaint  must  state 
that  it  was  wrongfully  obtained,  and  not  state  a  mere  conclusion 
of  law;  but  the  facts  should  be  fully  detailed,  so  that  the  court 
may  see  from  the  facts  that  the  payment  was  compulsory."  It 
is  not  sufficient  to  allege  compulsion  in  a  general  way.  Money 
extorted  by  duress  of  goods  may  he  recovered.-^ 

Thus,  a  complaint  in  an  action  to  recover  money  wrongfully 
obtained,  under  color  of  judicial  proceedings,  must  contain  such 
averments  as  will  exclude  the  idea  that  the  money  could  have 
been  lawfully  obtained.^''  But  the  influence  exerted  by  the 
provisions  of  the  statutes  of  the  United  States,  requiring  stamps 
to  be  placed  on  passage  tickets  by  steamer  from  San  Francisco 
to  New  York,  does  not  constitute  the  kind  of  coercion  or  com- 
pulsion which  the  law  recognizes  as  sufficient  to  render  the  pay- 
ment therefor  involuntary.^^  Generally,  to  constitute  compul- 
sion or  coercion,  so  as  to  render  a  payment  involuntary,  there 
must  be  some  actual  or  threatened  exercise  of  power,  possessed 
or  supposed  to  be  possessed  by  the  party  exacting  or  receiving 
the  money.^*"'  The  object  of  the  protest  is  to  take  from  the  pay- 
ment its  voluntary  character,  and  conserve  to  the  party  the  right 
to  recover  it  back.  The  fact  that  a  party  pays  money  under 
protest  does  not  change  the  character  of  the  transaction  or  en- 
able him  to  recover  it  back,  unless  the  payment  was  under  duress 
or  coercion,  or  where  undue  advantage  was  taken  of  his  situa- 
tion.27 

21  rary  v.  Ourtis,  3  How.  (TT.  S.')  2P,(\. 

22  Commercial  Bank  v.  Tlooliestor,  41  Barb.  341. 

2-3  Astley  V.  ■Reynolds,  2  Rtvn.  01.":  Bates  v.  Johnson,  '^  .Tohns.  Cas. 
238;  4  T.  R.  4R5:  id.  r>(]-[:  Chase  v.  Dwinal,  7  Greenl.  134;  Chase  v. 
Taylor,  4  Han-.  &  J.  .54;  Little  v.  Gibson.  3  N.  H.  508;  Tutt  v.  Ide, 
3  RlatPhf.  249;  McMillen  v.  Richards,  9  Cal.  365;  70  Am.  Dec.  655. 

24  Funkhouser  v.  How.  17  Mo.  225;  Chandler  v.  Sanger,  114  Mass. 
364;  19  Am.  Rep.  .367. 

2.".  OaiTison  v.  Tillinghast,  18  Cal.  404. 

2«Bmmasrim  V.  Tillinffhast,  IS  Cal.  265;  70  Am.  T>oc.  176;  and  see 
Adams  v.  Rrhiffpr,  11  Col.  15;  7  Am.  St.  Rop.  202;  Adams  v.  National 
Bank.  116  X.  Y.  606:  15  Am.  St.  Rop.  447. 

27Brnmafrim  v.  Tillinsrhast.  IS  Cnl.  265:  70  Am.  Dee.  176;  Kaqsas 
&  Pac.  R.  R.  Co.  v.  Wyandotte  Co.,  16  Kan.  587. 


531    MOXEY  HAD  AND  llECEIVED  TO  PLAIisTTlFF^S  USE.     §§  8-40,  8-il 

Where  money  was  not  credited  on  an  account  upon  which 
judgment  by  default  was  rendered  it  may  be  recovered  back.^ 
Where  a  special  contract  remains  open,  the  remedy  is  on  the 
contract,  but  if  the  contract  has  been  put  an  end  to,  an  action 
for  money  had  and  received  lies  to  recover  any  payment  that  has 
been  made  under  it.^ 

§  840.  When  it  does  not  lie  —  voluntary  payments.  The  sim- 
ple facts  that  A.,  owing  money  to  13.,  chose  to  pay  it  to  C,  un- 
der the  impression  that  C.  was  entitled  to  control  the  services  of 
13.,  and  to  receive  all  compensation  therefor,  do  not  entitle  B. 
to  maintain  an  action  against  C.  for  money  had  and  received.^*^ 
Under  a  count  for  money  had  and  received,  a  surety  can  not 
recover  of  his  principal  for  money  paid  by  the  surety  on  account 
of  his  liability  as  such.^^  To  sustain  a  count  for  money  had 
and  received  it  must  appear  that  the  defendant  had  received 
money  due  to  the  plaintiff,  or  something  which  he  had  really 
or  presumptively  converted  into  money  before  suit  brought,  or 
which  he  had  received  as  money,  and  instead  of  it.^-  Money 
voluntarily  paid  upon  a  claim  of  right  with  full  knowledge  of 
all  the  facts,  can  not  be  recovered  back  merely  because  the  party 
at  the  time  of  payment  was  ignorant  of  or  mistook  the  law  as  to 
his  liability.^^  Money  voluntarily  paid  can  not  be  recovered 
back,  even  though  it  coiih!  not  have  been  enforced  by  law.^*  So 
money  advanced  on  part  performance  of  an  agreement  can  not 
bo  recovered  back.^*^ 

§  841.  Statute  of  Limitations.  Wbere  the  promise  is  laid  of 
a  day  more  than  two  years  prior  to  the  commencement  of  the 

28  Parker  v.  Danforth,  16  Mass.  306;  Richardson  v.  Maine  Ins. 
Co.,  G  id.  14;  Loring  v.  Mansfield,  17  id.  394;  Wliitcomb  v.  Williams. 
4  ric'k.  228;  Gary  v.  Hidl.  11  .Tolins.  441;  Cobb  v.  Curtis.  8  id.  470; 
Pliil.  on  Ev.  (Cow.  &  H.)  .S32;  contra,  1  N.  H.  33;  Mitchell  v.  Sanford. 
n  Ala.  r,0.'.;  Binck  v.  Wood.  43  Barb.  315. 

20  Chcsapeako  t"t  Oliio  Canal  Co.  v.  Knapp,  9  Pet.  Tvll. 

^■0  Murpliy  v.  Ball,  38  Baib.  2(;2. 

^1  Child  V.  Eureka.  oU:.  Works,  44  N.  n.  3.")4. 

"2  Ilattcn  V.  Robinson,  4  Blackf.  (Tnd.)  470;  Mason  v.  Waite,  17 
Mass.  rtC-  Ainslie  v.  Wilson,  7  Cow.  662;  17  Am.  Deo.  532. 

•"••T  Brumafrini  v.  Tillinjrhast.  18  Cal.  26.->:  79  Am.  Dec.  176. 

34Corkio  V.  Maxw«'ll,  3  BlatHif.  413;  Comniorcial  Bank  v. 
Rorhestor,  42  Barb.  488;  soe  Chifapo  v.  Savings  Bank,  11  111.  App. 
165;  Could  v.  Mr-Fall,  118  Pcnn.  St.  4."5;  4  Am.  St.  Rep.  606;  City 
of  raindon  v.  Croen.  .54  N.  .1.  I..  .591;  .33  Am.  St.  Rpp.  686. 

3-'>  Ilansbrough  v.  Peck,  5  Wall.  fU.  S.)  497. 


§§  842,  8-13 


rOUM8   OF    COMPLAINTS.  532 


action,  the  cDiuplaiut  is  dcimirraliU'  («ii  Ihe  ground  that  it  shows 
tho  tlcniiuul  to  be  barred  by  the  Statute  of  Limitations.^" 

§   842.   Sume,  against  attorney  or  agent  with  demand. 
I-'onn  No.  202. 

[Title.] 
The  piamtill  complains,  and  alleges: 

I.  That  on  the day  ot ,  18. .,  at  the 

county  of ,  slate  of   ,  the  defendant 

received  from  ihe  plaintill,  as  the  agent  of  said  plaintiff,  the 
sum  of   dollars,  to  the  use  of  the  said  plaintiff. 

II.  That  thereafter,  and  before  this  action,  the  said  plaintiff 
demanded  payment  thereof  from  said  defendant. 

III.  That  the  defendant  has  not  been  paid  the  same,  nor  any 
part  thereof. 

[Demand  of  Judgment.] 

§  843.  Liability  of  attorney  and  agent.  An  attorney  is  not 
liable  for  moneys  collected  until  after  a  demand  or  instructions 
to  remit.^^  But  the  right  to  a  demand  may  be  waived.  And 
where  an  attorney  set  up  a  claim  against  his  client  to  a  larger 
amount,  it  was  held  a  waiver  of  a  demand.=^^  Attorneys  as 
partners  arc  lial)le,  although  it  was  paid  to  one  of  them,  and 
has  been  demanded  from  him  only.^^  A  person  not  an  attorney, 
who  collects  a  note  at  the  request  of  another,  is  liable  for  the 
amount,  after  a  reasonable  time,  without  demand.*^  Money  col- 
lected by  a  subagent  may  be  recovered.*^     Or  money  paid  to 

36  Keller  v.  Hicks,  22  Cal.  4.57.  An  action  for  money  had  and 
received  is  not  supported  by  proof  that  the  plaintiff  had  paid  the 
defendant  certain  sums  of  money  upon  a  written  contract  for  the 
conveyance  of  land,  which  had  been  rescinded  by  the  plaintiff  on 
the  ground  that  the  defendant  had  failed  to  deliver  a  deed  to  said 
land  within  Ihe  time  prescribed  by  the  contract.  Distler  v.  Dabney, 
3  Wash.  St.  200. 

•".7  B^;>rfl«lcv  V.  Foot,  11  .Johns.  404;  fi  Am.  Dec.  ?>9.{\:  Stafford  v. 
Richardson.  1;"  Wend.  P)02;  Tavlnr  v.  Bates,  5  Cow.  370;  Walradt 
V.  Maynard,  3  Barb.  .581:  Anderson  v.  Ilulme,  5  Mont.  29.5;  see 
McEavon  v.  Dameron,  82  Cal.  .57. 

ssBeardsley  v.  Boot,  11  .Tohns.  4('A\  6  Am.  Doc.  380;  Stafford  v. 
Richardson.  1.5  Wend.  302;  Taylor  v.  Bates,  5  Cow.  370;  Wakadt  v. 
Maynard,  3  Barb.  581;  and  see  Satterlee  v.  Frazer,  2  Sandf.  141. 

39  McFarland  v.  Crary,  6  Wend.  297;  compare  Ayrault  v.  Cham- 
berlin,  20  Barb.  83. 

40  Tlirls'ok  V.  Hifkok,  13  Barb.  632. 

41  Wilson  V.  Smith,  3  How.  (IJ.  S.)  763. 


533    MOXEY  HAD  AXD  EECEIVED  TO  PLAIXTIFF'S  USE.    §§844:,  845 

an  agent,  if  before  it  be  paid  to  the  principal,  notice  be  served 
upon  the  agent  that  it  will  be  reclaimed.'*^ 

§  844.  Demand  essential.  A  count  in  a  complaint  in  such 
an  action  is  bad  when  it  is  not  alleged  that  demand  has  been 
made  on  defendant;  as  a  party  receiving  money  for  the  use  of 
another  is  rightfully  in  possession  till  the  same  is  demanded.^^ 
One  who  has  received  money,  standing  in  the  position  of  trustee, 
e.  g.,  a  collecting  agent,  is  in  general  not  liable  in  an  action  for 
money  received  until  demand  is  made  or  some  breach  of  trust 
or  duty  conunitted.^*  As  where  a  bank  receives  money  it  can 
not  be  sued  until  after  it  has  been  drawn  for.^^  But  a  deposit 
with  a  stockholder,  or  an  alleged  wager,  may  be  sued  for  without 
a  previous  demand,  where  the  money  has  been  paid  over  before 
the  action.^^ 

§  845.  Sufficient  allegations.  A  complaint  which  alleges  that 
the  defendant  was  employed  as  plaintiff's  agent  for  the  purchase 
of  stock,  that  in  settlement  between  the  seller  and  defendant, 
the  former  was  found  to  be  indebted  to  the  latter,  as  the  plain- 
tiff's agent,  in  a  certain  sum,  which  he  paid,  but  which  the  de- 
fendant refuses  to  pay  to  the  plaintiff,  states  a  sufficient  cause 
of  action.^''^  A  complaint  against  an  agent  for  money  received, 
who  pretends  to  have  been  robbed  thereof,  may  properly  allege 
simply  that  the  defendant  being  in  possession  of  the  plaintiff's 
property  as  his  agent,  converted  the  same  to  his  own  use.^^ 
That  defendant,  as  such  agent,  had  collected  from  divers  per- 
sons divers  sums,  either  stating  the  aggregate  or  asking  an  ac- 
counting, is  sufficient.^^     In  an  action  by  a  corporation  to  re- 

42  Woofl  V.  T'nitod  States,  Dev.  .W. 

43  Reina  v.  Cross,  0  Oal.  ^\;  Greenfield  v.  Steamer  "  Ounnell,"  id. 
68;  see  §  830.  ante. 

<4  Walrath.  v.  Tliompson,  r>  Hill.  MO. 

4"  Downs  v.  riioonix  Bank,  6  Hill.  297. 

4«  Ruckman  v.  Pitcher,  1  N.  Y.  392;  see  Johnson  v.  Russell,  37 
Cnl.  670. 

47  Bates  V.  Col)b,  !">  Bosw.  20;  soe,  also,  Fletcher  v.  ruinmings, 
33  Neb.  793;  Cohn  v.  Bcckhanlt.  03  Ilun,  .3.3.3.  Where  an  aRcnt  has 
niad«  sales  for  his  prlncij)al  under  a  contract  allowing  him  com- 
missions, and  tlic  principal  has  collected  certain  snms  of  money  as  the 
proceeds  of  such  sales,  the  apent  can  not  recover  his  commissions 
In  an  action  for  money  had  and  receivr-d.  Tark  v.  Mif^hell,  3  Wash. 
St.  737:  38  Am.  St.  Rep.  888. 

4R  Frost  V.  McCarpar,  29  Barb.  017. 

49  West  V.  Brewster.  1  Dner.  0-17. 


§§  S-iG,  847  FORMS   OF    COMPLAINTS.  534 

cover  funds  rocoivod  by  tlu'  treaisurcr  tlu'i-ool',  il'  the  coinphiint 
shows  the  relation  of  the  parties,  and  givea  a  statement  ol  tlie 
moneys  received  hy  h\u\,  and  tliat  the  defendant  is  indebted,  it 
is  sufficient.  A  demand  will  l)e  inferred,  and  if  none  were 
made,  defendant  should  pay  the  debt,  but  not  the  costs.'*" 

§  846.  Who  may  recover.  An  action  for  money  had  and  re- 
ceived is  proper,  when  a  recovery  is  sought  of  money  which  de- 
fendant has  received  and  refused  to  pay  on  demand  to  the  ])lain- 
tiff,  who  is  entitled  to  it.^^  Where  an  agent  or  servant  applies 
money  of  his  employer,  in  his  hands,  to  discharge  the  debt  of 
a  third  person,  the  employer  may  recover  it  from  the  payee  as 
money  received  to  his  use,  if  the  payee  received  it  with  a  knowl- 
edge of  the  facts.^^  Either  one  of  the  several  joint  owners  of 
claims  against  a  third  person,  they  not  appearing  to  be  partners, 
may  maintain  an  action  against  an  agent  to  recover  his  share 
of  money  had  and  received  hy  the  latter  from  the  debtor. ^^  An 
assignee  to  recover  a  surplus  collected  by  a  creditor,  or  of  the 
assignor,  must  give  notice  of  the  assignment,  and  make  a  de- 
mand.^* 

§   847.   The  same  —  another  form. 

Form  No.  203. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  between  the   day  of   ,  18 .  . , 

and  the   day  of   ,  18.  .,  the  defendant 

was  the  agent  of  the  plaintiff  in  [stating  generally  the  employ- 
ment], that  he  collected  and  received  as  such  agent,  from  divers 
persons,  certain  sums  of  money,  for  and  on  account  of  the  plain- 
tiff, amounting  in  the  whole  to  the  sum  of dol- 
lars; no  part  of  which  has  been  paid  by  defendant  to  the  plaintiff. 

II.  That  on  the day  of ,  18.  .,  at 

,  the  plaintiff  demanded  payment  of  the  same 

from  the  defendant. 

III.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

50  Peoond  Avenuo  E.  R.  Co.  r.  Coleman,  24  Barb.  300. 
r.i  Stanwood  v.  Sajro,  22  CaL  .517. 
•'■'2  Amidon  v.  Wheolor,  3  Hill.  137. 
63  Allen  V.  Brown,  .51  Barb.  80. 
M  Sears  v.  Patrick,  23  Wend.  528. 


535    MONEY  HAD  AND  KECEIVED  TO  PLAINTIFF'S  USE.     §§  848-850 

§  848.  Notes  received.  Under  a  complaint  in  an  action 
against  an  agent  for  money  had  and  received,  the  plaintitt'  may 
recover  where  it  appears  that  the  defendant  received  notes 
which  were  good  and  collectible,  and  by  his  transactions  he  re- 
leased the  debtor  and  deprived  his  principal  of  all  remedy  except 
against  himself.^^ 

§  849.   For    money  received    by  defendant  through     mistake. 
Form  No.  204. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18.  .,  at 

,  the  defendant  presented  to  the  plaintiff  an  ac- 
count of  mutual  dealings  theretofore  had  between  them,  which 
said  account  set  forth  a  balance  due  from  the  plaintiff  to  the 
defendant  of  the  sum  of dollars. 

II.  That  the  plaintiff,  believing  said  account  to  be  correctly 
stated,  then  paid  said  sum  of dollars  to  the  de- 
fendant. 

III.  That  in  fact  said  account  was  not  correctly  stated,  but 

that  it  overcharged  the  plaintiff  with  the  sum  of 

dollars  by  an  error  in  adding  up  the  items  thereof  [or  other- 
wise, specifying  the  error]. 

IV.  That  defendant  has  not  paid  the  said  sum  of 

dollars  to  the  plaintiff,  though  requested  so  to  do. 

[Demand  of  Judgment.] 

S  850.  When  the  action  lies.  j\Ioney  paid  under  a  mutual 
mistake  of  facts  may  be  recovered  back.^'^  But  money  paid  by 
mistake  of  law  can  not  be  recovered  back,  there  being  no  dif- 
ference between  money  paid  in  ignorance  of  law  and  money 
paid  by  mistake  of  law.'''^ 

fis  Corlios  V.  Cnniminpr,  Hi  Cow.  18.%  note;  Floyd  v.  Day,  3  Mass. 
403;  3  Am.  Dor-.  171;  Beardsley  v.  Root,  11  .Tohns.  404;  fi  Am.  Dec. 
.380;  Allon  v.  Brown.  .'1  Barb.  80. 

r.«  Burr  v.  Veedcr.  3  WtMid.  412;  Whoa<loii  v.  Olds,  20  id.  174; 
r.aiial  Bnnk  v.  B.-ink  of  Albany.  1  Hill.  287;  Bank  of  Commrrro  v. 
T'nlon  Bank.  3  \.  Y.  2.30;  l)nnc-an  v.  Borliu.  00  id.  1.">1;  Manrlioster 
V.  Bnrns.  4.'.  N.  IF.  482;  Lane  v.  Boom  Co.,  02  Mich.  03;  Hoist  v. 
Rfpwart,  101  Mass.  .^)10;  42  Am.  St.  Kei).  442;  Olinstoad  v.  Daniiliiny, 
104  Cal.  03.">. 

r>^  Rrhlesinpor  v.  T'ultcd  Slates.  1  Nott  &  II.  10;  Elliott  v.  Swart- 
■wout,  10  Pet.  137. 


§§  t^.'il.  85v  I'OUMS    OF    (  OMI'L.VINTS.  53G 

§  851.  Essential  averments  —  demand.  Where  moiicy  is  paid 
by  iiiisiiiki',  notice  oJ!  the  mistake  and  demand  of  repayment 
before  suit  to  recover  it  back'  arc  not  necessary.  The  party  re- 
ceiving tlie  money  under  such  circumstances  is  not  a  bailee  or 
a  trustee.  But  such  a  demand  may  aii'ect  the  question  of  in- 
terest."^^^  The  facts  constituting  the  mistake  must  be  alleged. '^'^ 
A  direct  averment  of  mistake  is  unnecessary,  if  the  facts  upon 
which  it  is  founded  are  stated.^^  An  allegation  of  fraud  will 
not  support  evidence  of  mistake,  nor  vice  z'crsa.^^ 

§   852.   For  price  of  goods  sold  by  a  factor. 
For))i   No.  205. 
[Title.] 
The  plaintilf  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18.  .,  at 

,  the  defendant,  in  consideration  of  his  reasonable 

commissions,  agreed  with  plaintiff  to  sell  for  plaintiff  certain 
goods  [fifty  barrels  of  flour  J. 

II.  That  on  the day  of ,  18.  .,  at 

,  he  delivered  to  defendant  [fifty  barrels  of  flour], 

for  sale  upon  commission. 

III.  That  on  the  day  of  ,  18.  .    [or 

on  some  other  day  unknown  to  the  plaintiff,  before  the 

day  of ,  18.  .],  the  defendant  sold  the  said  mer- 
chandise for dollars. 

[IV.  That  the  commission  and  expenses  of  the  defendant 
thereon  amounted  to dollars.] 

Y.  That  on  the   day  of   ,  18 .  . ,  the 

plaintiff  demanded   from   the   defendant   the   proceeds   of  the 
said  merchandise. 

VI.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 
[Demand  of  Juboment.]^^ 

f^s  rtioa  Bank  t.  Van  Gieson,  18  .Tohns.  48.5. 

f>9  Finoli  V.  Hollinger,  47  Iowa,  17.3;  Stephens  v.  Miu'ton,  6  Oreis:. 
19.3;  Schnoiiover  v.  Donprhei-ty,  n.'>  Ind.  40.3;  Evarts  v.  Stejrer,  5 
Orepr.  147. 

60  Welles  V.  Yates,  44  N.  Y.  .^>2.-);  ^Mnlicr  v.  Hibernia  Ins.  Co..  67 
id.   283. 

61  Stephens  v.  Murton.  0  Ore^'.  19.3;  Leiphton  v.  flrant.  20  Minn. 
345. 

62  This  fonn  is  drawn  on  the  presumption  that  the  factor  has  not 
acfounted.  If  he  lias  accounted,  but  not  paid,  the  better  form  is 
on  an  "  account  stated."  If  he  has  not  accounted,  it  is  improbable 
that  the  plaintiff  will  know  the  precise  amount  of  his  expenses, 


537   MOXEY  HAD  AXD  KECEIYED  TO  PLAINTIFF'S  USE.     §§  853,  854 

§  853.  Essential  averments  —  demand.  In  an  action  against 
an  agent  lor  an  accounting,  etc.,  a  request  to  account  and  pay 
over  must  be  alleged  and  proved.^^  An  express  demand  should 
be  alleged.*^  In  an  action  against  a  factor  for  the  proceeds  of 
goods  sold,  of  which  he  apprised  his  principal,  a  demand  must 
be  shown,  unless  he  had  instructions  to  remit,  or  the  usage  of. 
his  business  made  it  his  duty  to  do  so  without  instructions.® 
If  the  complaint  in  an  action  for  the  price  of  goods  sent  on 
commission  alleges  that  defendant  sold,  but  did  not  account 
to  plaintiff,  the  plaintiff  must  prove  that  a  sale  actually  took 
place. ^® 

§  854.  Election  of  remedy  —  waiver  of  tort.  Under  a  com- 
plaint Avhich  contained  a  count  for  indebtedness  from  the  defend- 
ant to  the  plaintiff,  for  property  sold  and  delivered,  and  money 
received  to  the  plaintiff's  use,  the  plaintiff'  may  prove  a  tortious 
taking  by  the  defendant,  and  the  sale  of  the  property  by  him, 
and  the  receipt  of  the  money,  and  the  waiver  of  the  tort,  and 
sue  for  the  money  had  and  received,  or  for  the  value  of  the 
property,  as  for  goods  sold  and  delivered.  If  the  wrongdoer 
sells  the  property,  and  receives  the  money  therefor,  an  action 
lies  at  the  suit  of  the  owner  for  money  had  and  received,  and 
such  an  action  is  a  waiver  of  the  tort.^^  In  such  an  action  it  is 
not  necessary  to  state  how,  or  under  what  circumstances,  the 
money  came  to  the  defendant's  hands.  The  receipt  of  the 
money  to  the  plaintiff's  use  is  the  fact  which  constitutes  the 
cause  of  action.^ 

and  it  is  not  necessary  to  credit  him  with  them  in  the  complaint. 
N.  Y.  C<Kle  Oom'rs'  note.  T1k>  third  allegation  is  not  essential,  but 
may  prevent  any  answer  setting  up  his  claim. 

63  Bushnell  v.  McCauIey,  7  Cal.  421.  The  distinction,  in  respect 
to  the  necessity  of  provinjr  a  dfMuand,  l>etween  an  action  for  not 
arcountinp:  and  an  action  for  not  jmyinff  over,  is  discussed  In 
Cooley  V.  Belts,  24  Wend.  20.S. 

R4  Bainl  v.  Wallccr,  12  Barb.  208;  Ilnlden  v.  Crafts,  4  E.  D.  Smith. 
490. 

«6  Cooley  v.  Belts,  24  Wend.  20r?:  Ferris  v.  Paris,  10  .Tolins.  285; 
ITaUlnn  v.  Crafts.  4  E.  D.  Smitli,  400. 

«"  Ell>ourii<'  V.  rpjojiii,  1   C.  &  P.  572. 

''•^  Pnfnaiii  v.  Wise,  1  Hill.  234,  240,  note  a;  .37  Am.  Dec.  309; 
Sfhrofiti.r'l  V.  Corninfr.  (5  \.  Y.  112;  Roth  v.  Palmer.  27  Barb.  C,^^2. 

«« Rfovll  V.  New,  12  How.  Pr.  32r,;  Allen  v.  Patterson,  7  X.  Y. 
470;  57  Am.  Dec.  .542;  ITarpendintr  v.  Shoemaker.  .37  Barb.  270; 
compare  Byxbio  r.  Wood,  24  X.  Y.  007.  Whore  one  person  converts 
to  his  own  use  the  personal  property  of  another,  the  latter  may 

n8 


§§  855-857  FORMS  ov  co.mi'laints.  538 

S   865.   Against  factor,  for  price  of  goods  sold  on  credit. 

Form  No.   2o6. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18.  .,  the 

plaintiff  employed  the  defendant  to  sell  certain  goods  and  mer- 
chandise, of  the  value  of dollars,  upon  commis- 
sion, and  delivered  the  same  to  the  defendant,  who  then  promised 
to  sell  them,  and  be  responsible  to  the  plaintiff  for  the  price 
thereof. 

II.  That  on  the day  of ,  18 .  . ,  as  the 

plaintiff  is  informed  and  believes,  the  defendant  sold  said  goods 

and  merchandise  for  the  sum  of    dollars,  on  a 

credit  of  months  from  that  date,  which  credit 

expired  before  the  commencement  of  this  action. 

III.  That  the  commission  and  expenses  of  the  defendant 
thereon  amount  to dollars. 

IV.  That  plaintiff  further  alleges,  on  information  and  belief, 

that  the  sum  of dollars  is  the  price  of  said  goods 

and  merchandise,  after  deducting  said  charges. 

V.  That  on  the   day  of   ,  18.  .,  at 

,  the  plaintiff  demanded  of  the  defendant  payment 

of  the  said  sum  of dollars. 

VI.  That  he  has  not  paid  the  same  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  856.  Default  of  ptirchaser.  It  is  unnecessary  for  the  plain- 
tiff to  aver  that  the  purchaser  was  in  default,  nor  is  it  necessary 
to  aver  a  demand  on  him,  though  it  might  be  otherwise  if  the 
factors  guaranteed  the  payment  of  a  price  to  be  collected  by  the 
principal.^^ 

§  857.  Demand.  The  rule  is  settled  in  New  York,  that  a 
foreign  factor  is  not  liable  to  an   action  for  the  proceeds  of 

waive  the  tort,  and  sue  in  nssiiiupsit  for  the  value  thereof.  Lehraann 
V.  Srhniirlt,  S7  Cal.  IT);  Chittenden  v.  Pratt,  SO  id.  ITS;  Evans  v. 
Miller.  r,8  Miss.  120;  .'>,8  Am.  Rep.  .SIS;  Doon  v.  Raney,  49  Vt.  293. 
Thus,  if  a  ffiiardian  sells  personal  property  belonging  to  his  ward, 
and  denies  the  right  of  the  ward  to  any  interest  therein  or  in  the 
proceeds,  he  is  guilty  of  a  conversion,  and  the  ward  may  waive 
the  tort,  and  sue  in  assumpsit  for  the  purchase  money.  T.ataillade 
V.  Orena,  91  Cnl.  ~>C^t:  25  Am.  St.  Ren.  219;  and  see  Tuttle  v.  Camp- 
bell. 74  :Mich.  fi.'i2;  10  Am.  Rt.  Rep.  nr>2. 
60  1  Tars,  on  Cont.  78;  Milliken  v.  Byerly,  G  How.  Pr.  214. 


530    MOXEY  HAD  AXD  KECEIVED  TO  I'LAIXTIFF'S  USE.     §§  858,  859 

sales  made  by  him  for  accoimt  of  his  principal  on  commission^' 
until  a  demand  made  by  the  principal,  or  instructions  to  remit  J'' 

§  858.   Against  broker  for  proceeds  of  note  discounted. 
Form  No.  sqj. 
[Title.] 
The  plaintitf  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18.  .,  at 

,  the  plaintiff  employed  the  defendant  to  negotiate 

a  promissory  note,  the  property  of  the  plaintiff  made  by  one 
A.  B.  [describe  the  note],  and  thereupon  he  delivered  the  same 
to  the  defendant,  who  undertook  to  negotiate  the  same  for  a 
reasonable  commission,  and  to  pay  the  proceeds  over  to  the 
plaintiff. 

II.  The  plaintiff  further  alleges,  on  information  and  belief, 

that  on  the day  of ,  18 .  . ,  the  defendant 

procured  said  note  to  be  discounted  at  the Bank, 

and  received  as  the  proceeds  thereof  the  sum  of 

dollars. 

in.  That  the  commission  and  expenses  of  the  defendant 
thereon  amount  to 

lY.  That  on  the   day  of   ,  18.  .,  at 

,  the  plaintiff  demanded  of  the  defendant 

dollars,  the  balance  of  the  proceeds  of  said  note  after  deducting" 
said  expenses  and  commission. 

V.  That  he  has  not  paid  the  same. 

[Demaxd  of  Judgment.] 

§  859.  Unauthorized  sale.  For  selling  without  authority 
stock  which  the  broker  had  purchased  for  the  plaintiff,  if  tliis 
fact  be  shown  in  the  complaint,  and  that  it  was  to  be  delivered 
to  him  within  a  specified  time  at  his  option,  but  that  he  sold  it 
meanwhile  against  his  express  instructions,  a  demand  and  tender 
on  the  part  of  the  plaintiff  need  not  be  alleged.'^^  The  plaintiff 
can  not  recover  in  an  action  improperly  brought  as  one  for 
money  had  and  received,  although  the  real  cause  of  action  may 
be  disclosed  by  the  answer  and  reply.*^^ 

70  Walden  v.  Prafts.  2  Abh.  Pr.  .".01;  TTalden  v.  Crnfts.  4  E.  D. 
Smith.  400;  Forris  v.  Paris,  10  Jolms.  2.Sr,;  Lillle  v.  Hoyt,  5  Hill, 
.m^i:  40  Am.  Der.  ?,C^. 

71  riark  r.  Melps.  I.T  Ahb.  Pi-.  407. 

72  Clark  V.  Sberman,  T^  Wash.  St.  681. 


CHAPTEE  X. 

FOR  MONEY   LENT. 

{   860.   Lender  against  borrower. 

Form  No.  208. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of   ,  18.  .,  at 

,  he  lent  to  the  defendant,  at  his  request, 

dollars. 

II.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

Wherefore  the  plaintiff  demands  judgment  for 

dollars,  with  interest  from  the day  of , 

18.. 

§  861.  Essential  averments.  Every  material  fact  must  be 
alleged  with  certainty;  and  all  those  facts  which  are  neces- 
sary to  distinguish  the  transaction  in  question  from  every  other 
like  transaction  are  material.  These  details  are  often  immate- 
rial, in  the  sense  that  no  issue  can  be  made  upon  them;  yet  are 
material  as  matter  of  description.  For  instance:  if  to  the  plain- 
tiff's allegation  that  "  at  San  Francisco,  he  lent,"  the  defendant 
should  answer  that  he  never  borrowed  any  money  from  the 
plaintiff  at  San  Francisco,  the  answer  would  be  frivolous.  Time 
is  not  ordinarily  material,  except  the  order  of  occurrences,  and 
to  fix  the  date  when  interest  began.  When  no  time  is  fixed 
for  the  repayment  of  the  loan,  the  presumption  is  that  it  was  to 
be  paid  immediately.-'  Nor  is  it  necessary  to  show  that  the  debt 
had  become  payable  at  the  commencement  of  the  action,  as  that 
is  matter  of  defense  to  be  set  up  in  the  answer.^  But  whenever 
time  is  material,  as  in  the  case  of  demnnd  anri  notice  to  charge 
an  indorser,  it  must  be  directly  anrl  truly  stated.^ 

1  Peets  T.  P.ratt,  r>  Rnrb.  fifi2. 

2  Smith  V.  Holmes.  10  N.  Y.  271;  Maynard  v.  Taloott,  11  Barb. 
5ffl):  Wise  V.  Ilofran,  77  Cal.  187;  Doe  v.  Sanger,  7S  id.  151;  Kraner 
V.  ITalsey.  S2  id.  210;  Cnrtiss  v.  Aetna  L.  Irrs.  Co.,  90  id.  245;  25 
Am.  St.  Kep.  114. 

3  Castro  V.  Wetmore,  ir,  Cal.  379. 


541  MOXEY    LENT.  §  862 

It  has  been  held  that  an  allegation  that  the  money  was  lent 
at  the  defendant's  request  may  be  omitted.*  Although  it  is 
necessary  to  prove  a  request  in  order  to  constitute  a  loan.^  But 
in  general,  a  request  in  such  case  will  be  implied.^  Where  a 
special  request  is  necessary  to  be  averred,  the  general  allegation 
of  "  though  often  requested "  is  not  sufficient.'^  The  defect, 
however,  is  cured  by  verdict.^  In  an  action  to  recover  money 
loaned,  if  the  complaint  charges  the  indebtedness,  the  manner 
in  which  it  accrued,  the  promise  to  pay,  and  the  refusal,  it  is 
sufficient.^  It  is  not  necessary  to  state  when  the  debt  was  to 
be  repaid,  except  for  the  purpose  of  fixing  a  date  for  interest. 
The  presumption  of  law  is,  that  it  was  to  be  paid  immediately.^" 
Nor  is  it  necessary  to  show  that  the  debt  was  due  at  the  com- 
mencement of  the  action.  If  it  was  not,  that  is  matter  of  de- 
fense, to  be  set  up  in  the  answer.^^  Where  the  count,  in  an 
action  for  money  lent  and  advanced,  sets  forth  a  demand  for  a 
certain  sum,  and  the  Jury  find  a  verdict  for  a  larger  sum,  it  is 
not  erroneous,  if  the  declaration  covered  the  larger  sum  in  the 
ad  damnimiP  It  may  be  doubted  whether  the  allegation  of 
nonpayment  is  necessary.^^ 

In  an  action  where  the  complaint  set  out  a  draft  dravm  by 
defendants  on  a  house  in  Boston,  which  it  avers  was  drawn  with 
the  understanding  that  plaintifl'  should  pay  the  same,  but  did 
not  aver  that  after  paying  the  draft,  he  canceled  it,  and  de- 
livered it  up  to  the  defendant;  it  was  held  that  the  defects  were 
fatal  in  this  form  of  action.^^ 

§  862.  Payments  made  on  account.  The  plaintiff  need  not 
state  payments  made  on  account,  as  this  is  matter  of  defense. 

4  victors  V.  Davis,  1  Dowl.  &  L.  984 

B  Brown  v.  Gamier,  (\  Taunt.  .380. 

fl  See  Victors  v.  Davis,  1  Dowl.  &  K  984;  see,  also,  in  this  oon- 
nertlon,  Brown  v.  Gamier,  0  Taunt.  389;  S.  C,  1  Enp.  Com.  T>.  R. 
421,  where  it  was  lield  that  "  liired  "  implies  a  request. 

7  Bush  v.  Stevens.  24  Weinl.  2r>f;;  Wliitlon  v.  Wliitton,  38  N.  H. 
127:  7.'  .Am.  Dee.  10.3. 

ft  T.f'fTlntrwell  v.  White.  1  .Tohns.  Gas.  90;  1  Aum  Dec.  97. 

0  M'illiams  v.  Glaspow,  1  Nev.  .''>33. 

If  Peets  V.  Braft.  fJ  Barb.  (V^2. 

11  Smith  V.  Holmes,  19  N.  Y.  271. 

12  >[ll]  V.  Bniilt  of  TTnitod  States,  11  Wheat.  4.31,  at  p.  440. 

13  See  Laiininp  v.  Garpenter,  20  N.  Y.  AT)S\  McKyrinj?  v.  Bull,  16 
Id.  297;  Off  Am.  Dee.  095. 

14  Lambert  v.  Slade,  3  Cal.  330. 


§§  803,  864  FORMS  ov  complaints.  642 

But  wiu'io  the  Gomplaint  is  verified,  tliere  is  a  necessity  to  do 
so;  and  in  such  case  he  should  bricliy  state  wliat  amount  has 
been  paid.^'"*  As  any  payments  must  be  pleaded,  it  is  certain 
that  tliL'  most  general  form  of  averring  nonpayment  is  sufficient. 
It  is  not  necessary  to  add  "  or  any  part  thereof."  Although 
not  necessary,  it  is  highly  proper  to  credit  the  defendant  with 
any  payments. 

§   863.   The  same  —  no  time  for  payment  agreed  on. 

Form  No.  2Q<^. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18.  .,  he 

loaned  the  defendant,  for  his  accommodation,  and  at  his  re- 
quest, and  without  any  time  being  agreed  on  for  repayment, 
the  sum  of dollars. 

II.  That  he  has  demanded  payment  of  the  same,  but  the  de- 
fendant has  not  paid  said  sum  of dollars,  nor  any 

part  thereof. 

§   864.   By  assignee  of  lender  against  borrower. 

Form  No.  2io. 
[Demand  of  Judgment.] 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day   of    ,   18..,   at 

,  the  defendant  was  indebted  to  one  A.  B.,  in  the 

sum  of dollars,  on  an  account  for  money  lent  by 

said  A.  B.  to  the  defendant. 

II.  That  on  the    day  of   ,  18.  .,  at 

,  the  said  A.  B.  assigned  said  indebtedness  to  the 

plaintiff,  of  which  assignment  defendant  had  due  notice. 

III.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.]^® 

IB  Van  Demark  v.  Van  Demark,  13  How.  Pr.  372;  Giles  v.  Betz, 
15  Abb.  Pr.  28.5. 

ifi  This  form  of  complaint  shonld  only  l)e  employed  in  cases 
where  the  items  of  the  claim  are  embraced  in  an  account.  Allen 
V.  Patterson,  7  N.  Y.  476;  57  Am.  Dec.  542.  For  authorities  in 
support  of  the  above  form,  consult  Freeborn  v.  Glazier,  10  Cal.  337; 
De  Witt  v.  Porter,  13  id.  171;  Beekman  v.  Platner,  15  Barb.  550; 
Second  Avenue  R.  B.  Co.  v.  Coleman,  24  id.  .300.  Whore  the 
action  is  not  on  an  account,  this  complaint  may  be  obnoxious  to  a 
motion  to  make  it  more  definite  and  certain,  if  defendant  is  pre- 


543  MONEY   LEXT.  §  865 

§  865.   Partners  lenders,  against  partners  borrowers. 
Form  No.  2ii. 

[Title.] 
A.  B.  and  C.  D.,  tlie  plaintiffs,  complain  of  E.  F.  and  G.  H., 
the  defendants,  and  allege: 

I.  [Allege  partnership  as  in  form  104.] 

II.  That  on  the day  of ,  18.  .,  at 

,  the  plaintiff's  loaned  to  the  defendants  at  their 

request  the  sum  of  [five  hundred]  dollars,  on  condition  that  it 
should  be  repaid  on  demand,  with  interest  from  that  date,  at 
per  cent,  per  month. 

III.  That  plaintiffs  have  demanded  payment  thereof. 

IV.  That  defendants,  or  either  of  them,  have  not  paid  said 
sum,  and  the  interest,  or  any  part  thereof. 

Second.  And  for  a  second  cause  of  action,  the  said  plaintiffs 
allege : 

I.  That   on  the    day  of    ,   18..,   at 

,  the  plaintiff's,  at  the  special  instance  and  request 

of  the  said  defendants,  paid,  laid  out,  and  expended  for  the 
said  defendants,  and  to  and  for  their  use  and  benefit,  the  sum 
of  [five  hundred]  dollars;  in  consideration  whereof,  the  said 
defendants  promised  the  said  plaintiffs  to  pay  unto  the  said 
plaintiffs  the  sum  of  [five  hundred]  dollars  on  demand,  together 
with  interest  thereon. 

II.  That  on  the day  of ,  18.  .,  at 

,  the  plaintiffs  demanded  payment  thereof. 

V.  That  the  defendants,  or  either  of  them,  have  not  paid  the 
same,  the  interest  or  any  part  thereof;  except,  etc.  [State 
briefly  the  total  payments.] 

[De:n[and  of  Judgment.] 

Money  advanced,  either  as  a  loan  or  on  joint  account,  to  be 
u=ed  for  gambling  purposes,  if  so  used,  can  not  be  recovered 
back." 

.ludiced  by  its  vant  of  partioularity.  Eno  v.  Woodward,  4  N.  Y. 
249:  .^13  Am.  Dec.  370;  soe,  also,  Wood  v.  Anthony.  9  How.  Pr.  78; 
riieesbronph  v.  New  York  &  Erie  R.  R.  Co..  l.'i  id.  .^k57;  Hall  v. 
Southniayd.  1.^  Barb.  .32.  But  not  necessarily  so.  Adams  v.  HoUey, 
12  How.  Pr.  320. 

1"  Shaffner  v.  Piiuliliack.  .".<»  111.  3."r,  Tyler  v.  Carlislo,  79  Me.  210; 
1  Am.  St.  Rep.  .301:  Waufrli  v.  Beok,  114  P<'nn.  St.  422;  00  Am.  Rep. 
3.^4:  and  hoc  Raymond  v.  T.pavitt,  40  Mifh.  447;  41  Am.  Rep.  170; 
Miles  v.  Androws,  40  111.  App.  l.'f*.  Money  advanrofl  as  margins 
can  not  lie  recovered  back.    Dows  v.  Gla.spel,  4  N.  Dak.  251. 


CHAPTER  XI. 

FOR  MONEY   PAID. 

§  866.   For  money  paid  to  a  third  party  at  defendant's  request. 
Form  Nq.  212. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of  ,  18. .,  at 

,  at  the  request  of  defendant,  plaintiff  paid  to  one 

A.  B dollars. 

II.  That  in  consideration  thereof,  defendant  promised  to  pay 
the  same  to  plaintiff. 

III.  That  on  the day  of ,  IB-  -,  tne 

plaintiff  demanded  payment  of  the  same  from  the  defendant, 
but  he  has  not  paid  the  same  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  867.  Action  for,  when  it  lies.  In  this  action,  there  may  be 
a  recovery  of  money  wliich  an  acceptor  has  paid  for  the  drawer,^ 
or  which  a  surety  has  been  obliged  to  pay  for  his  principal.^ 
In  general,  it  lies  upon  an  implied  engagement  by  the  defendant 
to  repay.^  But  the  ol)jection  that  there  was  a  special  agreement 
can  not  defeat  the  action  for  money  paid,  when  the  written 
contract  produced  contained  nothing  more  than  what  the  law 
would  imply.*  Where  the  plaintiff  in  an  action  omitted  to 
state  the  amount  of  money  advanced  and  sought  to  be  recovered, 
the  defect  is  not  cured  by  a  bill  of  sale  filed  with  a  petition, 
though  it  contains  a  statement  of  the  amount  advanced."^     In 

1  Whitwell  V.  Brifrham,  19  Tick.  121. 

2  AVarrl  V.  Ileniy,  ,5  Conn.  598;  13  Am.  Dec.  119. 

3  Orissell  v.  Robinson,  32  Eng.  O.  L.  15;  and  see  San  Gabriel,  etc., 
Co.  V.  Witmer,  96  Cal.  623;  Perin  v.  Parker,  25  111.  App.  465;  126 
111.  201;  9  Am.  St.  Rep.  .571;  Norton  v.  Colgrove,  41  Mich.  .544  It 
has  been  said  that  in  order  to  maintain  an  action  for  money  paid, 
the  plaintiff  must  prove  an  actual  payment  upon  request  of  the 
defendant,  or  a  payment  with  the  defendant's  subsequent  assent 
and  approval.     Fowler  v.  Hall,  7  111.  App.  332. 

4  Gibbs  V.  Bryant,  1  Pick.  118. 

5  Allen  V.  Shortridge,  1  Duval  (Ky.),  34. 


54:5  MONEY   PAID.  §  S6S 

an  action  to  recover  back  money  received  by  the  defendant  from 
the  plaintiff,  words  in  the  complaint  charging  fraud  may  be 
regarded  as  a  matter  of  inducement.  The  fraud  need  not  be 
proved.*'  ]\Ioney  fraudulently  received  from  a  bank  may  be 
sued  for  before  the  note  given  to  the  bank  becomes  due.^  Or 
money  received  on  a  prize  drawn  by  fraudulent  means  in  a  lot- 
tery.^ Where  a  third  person  receives  money  due  from  a  debtor 
to  his  creditor,  and  does  not  pay  it  over  to  the  creditor,  in  con- 
sequence of  which  the  creditor  brings  an  action  against  the 
debtor  and  recovers  his  demand,  the  debtor  may  sue  such  third 
person  to  recover  back  the  former  payment.^ 

§  868.  Essential  allegations  —  demand  —  promise.  No  de- 
mand is  necessary.  It  is  inserted  here  only  as  an  example  of 
the  mode  of  alleging  demand  when  it  is  desired  to  fix  a  date  for 
the  commencement  of  interest.  An  allegation  of  promise  is  not 
absolutely  necessary,  as  the  law  w^ll  imply  a  promise;  but  as  an 
express  promise  is  almost  always  made  in  such  cases,  it  is  better 
to  state  it.  If  no  express  promise  is  made,  none  should  be 
pleaded.io  The  Statute  of  Frauds  prescribes  that  "  every  special 
promise  to  answer  for  the  debt,  default,  or  miscarriage  of  an- 
other," is  void  if  not  in  writing.  But  it  need  not  be  alleged  in 
the  complaint  that  the  promise  was  "  in  writing."  Money  paid 
upon  a  contract  which  is  invalid  under  the  Statute  of  Frauds, 
can  not  be  recovered  back  so  long  as  the  other  party  is  ready  and 
willing  to  perform  on  his  part.^^ 

«  Harpendinjr  v.  Shoeraaker.  37  Barb.  270. 

^  Gibson  v.  Stevens.  3  McLean,  551. 

8  Catos  V.  rhalen,  2  How.  (U.  S.)  376. 

«  Priest  V.  Price,  3  Keyes,  222. 

10  See  Farron  v.  Sherwood,  17  N.  Y.  227;  see,  also,  Berry  v. 
Femandes,  1  Bing.  338.  A  complaint  statinf?  the  payment  of  a 
sum  of  money  l)y  the  plaintiff  at  the  special  instance  and  request 
of  tho  defcnflant.  for  which  money  so  paid  the  defendant  la  In- 
debted to  liliii,  and  has  refused  to  pay  the  money,  or  any  part  of 
it,  is  sufficient,  witliont  nvcrrinj?  a  promise  1>y  the  defendant  to 
repay  tlio  money,  since  the  law  implies  such  a  promise.  Kraner 
V.  Ilalsey,  82  Cal.  200.  See,  further,  as  to  sufficiency  of  complaint 
in  such  action,  Kodpei-s  v.  Wittenmyer,  88  Cal.  5.~»3;  Ilurlbntt  v. 
Saw  Co.,  03  Id.  55;  Monlton  v.  T>oux,  52  Id.  81;  Jaffe  v.  LUientha!. 
86  Id.  91. 

"  AUls  V.  Bead,  45  N.  Y.  142. 

Vol.  1—69 


§§  809 -87:^  fdkms  of  com  plaints.  546 

5  869.  By  one  having  paid  debt  of  another,  to  be  repaid  on 
demand. 

Form  No.  213. 

[Title.] 

The  plaiiitiir  complains,  and  alleges: 

1.   That  on  the    day   of    ,   18..,   at 

,  he  paid  to  the  use  oi'  the  defendant,  at  his  request, 

and  on  condition  that  tlie  same  should  be  repaid  on  demand,  the 

sum  of dollars,  to  one  A,  B.,  for  one  quarter's 

rent  of  the  house  then  occupied  by  the  defendant  [or  state  the 
character  of  the  debtj. 

[II.  That  the  plaintiff^  on  the day  of , 

18.  .,  at  ,  demanded  payment  of  the  same  from 

the  defendant.] 

III.  That  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

I  870.  Essential  allegations  —  demand  —  request.  Tlie  allega- 
tion of  demand  is  not  in  general  necessary,  except  for  the  pur- 
pose of  fixing  the  time  for  interest  thereon.  An  averment 
of  request  is  necessary  in  a  complaint  for  money  paid.^^  But 
it  may  be  either  express  or  implied;  and  if  implied,  the  facts 
raising  it  must  be  alleged. ^^ 

§  871.   The  same  —  to  be  repaid  on  a  specified  day. 

Form  No.  214. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18.  .,  at 

,  he  paid  to  the  use  of  the  defendant,  and  at  his 

request,  the  sum  of dollars,  to  one  k.  B.,  the 

amount  of  a  promissory  note  made  by  the  defendant. 

II.  That  defendant  promised  to  repay  said  sum,  with  interest, 
to  this  plaintiff,  on  the day  of ,  18 .  . 

III.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  872.  Liability  to  repay,  how  created.  The  defendant's  legal 
liability  to  pay  the  debt  whicli  the  plaintiff  has  paid  is  an  essen- 
tial fact  in  an  action  to  recover  the  money  paid,  unless  there  be 

12  2  Oroenl.  Ev.  f)?,;  and  spp  Cnrtis  v.  Parks,  .5.5  Cal.  106. 

13  Dumford  v.  Messiter,  .5  Man.  &  R.  44G. 


547  MONEY  PAID.  §§  873,  874 

au  express  promise  by  defeudant  to  repay  the  plaintiff.^'*  But  a 
party  who  pays  an  illegal  claim,  without  duress  of  person  or  of 
goods,  or  fraud  on  the  part  of  the  claimant,  although  he  makes 
such  payment  under  protest,  can  not  maintain  an  action  to 
recover  back  the  money  so  paid.^^ 

§  873.   For  repayment  of  money  paid  on  a  reversed  judgment. 

Form  Xo.   21^. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  or  about  the day  of >  18 .  . , 

judgment  was  rendered  against  this  plaintiff  in  the  Superior 

Court,  county  of ,  state  of  California,  in  an  action 

wherein  the  defendant  was  plaintiff,  and  this  plaintiff*  was  de- 
fendant, for  the  sum  of dollars. 

II.  That  on  the    day  of    ,   18.  .,  at 

,  the  plaintiff  paid  to  the  defendant  the  sum  of 

dollars,  in  satisfaction  thereof. 

III.  That  afterwards,  on  the day  of , 

18.  .,  by  the  judgment  of  the  Supreme  Court  of  the  state  of 
California,  said  first-mentioned  judgment  was  reversed;  but  that 
no  part  of  the  said  sum  paid  in  satisfaction  thereof  has  been 
repaid  to  this  plaintiff. 

[Demand  of  Judgment.] 

§  874.  Essential  allegations  —  when  action  lies.  Money  paid 
on  a  reversed  or  suspended  judgment  may  be  recovered  back.^^ 
In  such  action  it  must  be  shown  that  the  judgment  was  reversed; 
it  can  not  l)e  stated  as  erroneous.^'''     Tlie  award  of  a  venire  do 

14  2  Oreenl.  Ev.  10.3,  §  114,  note;  San  Gabriol,  etc.,  Co.  v.  Witmer, 
90  Cal.  02.3.  Action  by  surety  on  a  i^roiiiissory  note  against  his 
principal  for  roiniburseniont.     See  ClMuton  v.  Coward,  07  Cal.  373. 

ir'  Flower  v.  I.ance,  V>\)  N.  Y.  003;  and  see  McDerniott  v.  Mitchell, 
r>3  Cal.  010.  If  a  man  pays  money  in  satisfaction  of  a  claim,  in 
order  to  recover  it  back  he  must  allege  facts  justifying;  suoli  re- 
covery, and,  if  the  facts  arc  denied,  he  must  i)rove  tlioni.  If  lie 
relics  ui)on  deception  and  fraud,  lie  must  allege  them.  If  ho  alleges 
8imj)ly  that  he  jiaid  a  sum  of  money,  and  i\sks  that  he  may  recover 
it  back,  without  sliowing  any  good  reason  in  law  why  it  should  bo 
n-turned  to  him,  he  states  no  cause  of  action.  Adams  v.  Smith, 
in  Xev.   2.'0. 

i«T{aun  V.  Iteyimlds,  IS  CmI.  270. 

1"  Bank  of  Washington  v.  Rank  of  I'nited  States,  4  Cranch  C.  C. 
80;  compare  McDauiel  v.  Kiggs.  .",  id.  107:  Rank  of  Washington  v. 
Neale,  4  id.  027;  White  v.  Ward,  0  .Tohns.  232;  Roth  v.  Schloss,  6 
Rarb.  ?,i)R. 


R  S75  FOW.MS    OK    COMI'LAINTS.  548 

noi'O,  to  1)0  issued  liy  the  court  below,  and  an  order  tliat  the 
costs  of  reversal  abide  the  event  ol  the  suit,  are  no  bar  to  the 
action  to  recover  back  the  money  paid.^**  An  action  lies  to  re- 
cover back  money  paid  uuck'r  thi'  award  of  a  public  ollicer,  when 
such  award  was  obtained  by  Iraud  and  iiupositu)n,  and  where 
the  i)ayment  -was  made  bel'ore  discovering  the  IrautL''' 

§   875.   By  bioker,  for  money  advanced  on  account  of  his  prin- 
cipal. 

Form  No.  2i6. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  the  plaintill's  are  partners,  doing  business  in  the  city 
of as  brokers,  under  the  firm  name  of  A.  B.  &  Co. 

II.  That,  as  brokers,  on  or  about  the day  of , 

18.  .,  they  purchased  for  and  on  account  of  the  defendant,  and 
at  his  request,  the  following  goods,  wares  and  merchandise 
[designate  them],  under  an  agreement  that  said  goods,  wares, 
and  merchandise  were  to  be  paid  for  by  the  defendant  at  the 

expiration  of days  from  the  day  of  purchase,  with 

the  right  to  the  defendant  to  pay  for  said  goods,  wares,  etc., 
at  any  time  before  the  expiration  of  said   days- 

III.  That  it  is  the  custom  of  brokers  in  such  cases  to  pur- 
chase the  goods  in  their  own  names,  without  disclosing  the  name 
of  their  principal,  and  in  case  of  the  failure  of  the  principal 
to  pay  for  the  same,  to  resell  the  goods  on  account  of  the 
principal. 

IV.  That  on  the    day  of    ,  18 .  . ,  at 

plaintiffs  offered  to  deliver  said  goods,  wares,  and 

merchandise  to  the  defendant,  and  demanded  of  him  payment 
for  the  same. 

V.  That  on  or  about  the day  of ,  18 .  . , 

the  defendant  paid  to  the  plaintiffs,  on  account  of  the  said 
purchase  of  goods,  w^ares,  etc., dollars. 

VI.  That  at  the  expiration  of  the  said    days,  the 

defendant  failed  to  pay  the  balance  due  for  said  foods,  and 
the  plaintiffs  paid  for  the  same,  and  to  reimburse  themselves, 

afterwards,  on  the day  of  18..,  sold 

the  same  on  his  account,  at  [state  the  price].  And  that  there 
is  now  due  and  unpaid  from  the  defendant,  to  the  plaintiff, 

IR  Ptnrc-ps  v.  A  His,  10  Wend.  ^.^.5. 

if»  ^rirhigran  v.  Phoenix  Bank,  33  N.  Y.  9:  Modifying  S.  C,  7  Bosw. 
20. 


549  jioxEY  PAID.  §§  870,  877 

on  account  thereof,  the  sum  of dollars,  and  interest 

thereon  from  the  date  last  aforesaid. 

[Demand  of  Judgment.] 

§  876.  Essential  allegations  —  custom  —  demand.  It  is  well 
to  set  forth  the  custom  of  brokers  m  such  transactions.^"  A 
custom  of  insurance  brokers  to  take  dividends  declared  by 
mutual  companies  in  lieu  of  all  other  compensation,  is  bad.^^ 
The  plaintiff  must  aver  that  he  demanded  payment  of  the  price, 
and  oli'ered  to  deliver  the  goods.^^ 

§  877.   For  lei^ayment  of  deposit  on  purchase  of  real  estate. 
Form  No.  217. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18.  .,  the 

plaintiff  and  the  defendant  made  their  contract  in  writing,  sub- 
scribed by  them,  whereby  it  was  mutually  agreed  that  the  said 
defendant  should  sell  to  this  plaintiff,  and  the  plaintiff  should 
buy  from  the  defendant,  certain  real  estate  [describe  it],  for  the 

sum  of dollars,  to  be  paid  by  the  plaintiff;  that 

the  defendant  should  make  a  good  title  to  the  said  premises,  and 

deliver  a  deed  thereof  on  the  day  of , 

18.  .;  and  that  the  plaintiff  should  thereupon  pay  to  the  said 
defendants  the  said  purchase  money. 

II.  That  the  plaintiff,  as  a  security,  as  well  for  the  perform- 
ance of  said  agreement  on  his  part,  as  to  secure  a  perfo-rmance 
thereof  on  the  part  of  the  defendant,  then  and  there  deposited 

in  the  hands  of  said  defendant  the  sum  of dollars, 

as  part  of  said  purchase  money,  to  be  to  and  for  the  use  of  the 
defeurlant,  and  to  be  retained  by  him  on  account  of  the  purchase 
money,  if  the  plaintiff  should  complete  his  purchase  and  receive 
the  deed;  but  to  be  to  and  for  the  use  of  the  plaintiff,  and 

20  Whitplionse  v.  Moore,  13  Abb.  Pr.  142. 

21  Minnesota  V.  \\.  \\.  Co.  v.  Morgan,  .'i2  Barb.  217. 

22  Merwin  v.  flaniilton,  0  Dncr.  244.  A  f-oinplaint  allotrinp:  that 
tlip  plaintiff,  as  n  roiniiiission  brokpr,  advanced  a  si)ecitied  snni  of 
money  for  the  dpfendnnts,  at  their  instanee  jind  retinest,  in  the 
pnrehase  of  produce,  and  tliat  tlie  defendants  jn'oniised  to  pay 
the  same  to  the  plaintiff,  but  although  often  requested  so  to  do. 
neplerted  and  still  nefxleets  to  iiay  the  same  to  the.  plaintiff,  is 
neither  uneertain  nor  ;inibipuous,  and  sets  forth  all  tliat  is  i('(|uired. 
TloRerH  v.  Duff,  DT  Tal.  <!*;.  r(iini)laint  in  notion  for  UKjney  over- 
paid to  agent.    See  Sommer  v.  Smith,  90  Cal.  200. 


§  878  I'OHMS    Ol-    t'OxMPLAlNTS.  660 

to  be  ivtuinoil  to  Jiiiii,  it  the  dcrendani  should  tail  to  tullili 
his  agrecuK'nl,  to  give  a  deed  at  tlu'  liiiio  and  ])ur8iiaut  to  tlic 
agreonu'iit. 

111.  That  he  lias  always  been  ready  and  willing  to  (h>  and 
perform  everything  in  the  agreement  eonlained  on  his  part^  and 

on  the  said day  of ,  i^-  -,  ^vas  ready  and 

willing,  and  ott'ered  to  the  defendant  to  arccpt  the  deed  of  the 
premises  pursuant  to  the  agreement,  and  to  [)ay  to  him  tlie 
balance  of  the  purchase  money  due  therefor. 

1\'.  That  the  defendant  did  not  on  the  said day  of 

18.  .,  nor  at  ajiy  time  since,  give  him  a  deed  of 

tlie  premises  pursuant  to  the  agreement,  but  refused  to  do  so. 

V.  That  on  the day  of ,  18 .  . ,  he  de- 
manded of  the  defendant  payment  of  the  sum  of 

dollars,  deposited  with  him  as  aforesaid. 

VI.  That  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

§  878.  When  action  lies.  Upon  failure  of  the  vendor  to  be 
ready  with  the  deed,  and  convey  a  good  title  on  the  day  agreed, 
the  vendee  may  rescind  the  contract,  and  recover  back  the  de- 
posit;^ and  a  demand  of  the  deposit  is  a  rescission.^'*  And  if 
on  demand  the  vendor  positively  refuses,  no  further  demand  is 
necessary.^'^  But  if  by  the  laches  of  the  vendee  the  remedy  at 
law  is  barred,  and  the  right  to  a  specific  performance  is  forfeited, 
there  can  be  no  recovery  of  what  ha£  been  paid  on  the  contract.^ 
Thus,  upon  a  sale  by  auction,  if  the  vendor  fails  to  complete  the 
contract,  the  deposit  may  be  recovered  from  the  auctioneer  as 
stakeholder :2^  and  if  he  fails  to  disclose  his  principal,  he  is 

23  .Tudson  V.  Wnss.  11  .Johns.  525;  6  Am.  Deo.  .392;  Sugd.  on  Vendors, 
359;  Van  Benthuysen  v.  Crapser,  8  .To  1ms.  2r)7;  Dominick  v.  Sayre,  3 
Sandf.  555.  An  action  to  recover  back  piurcliaso  money  paid  under  an 
executory  contract  for  the  sale  of  land  is  basejfl  upon  the  theory 
that  the  contract  has  ceased  to  exist,  and  that  the  money  paid 
may  be  recovered  for  the  use  of  the  person  Avho  paid  it.  Joyce 
T.  Shafer,  97  Gal.  .^3.5. 

2-1  Id.  '\^'llether  or  not  there  was  a  rescission  of  a  contract  of  pur- 
cha.se  is  a  (inestion  of  faot,  and  is  the  ultimate  and  fundamental 
fact  in  an  action  to  recover  back  the  purchase  money  paid.  Merrill 
V.  Merrill.  102  Cal.  .'',17. 

2r.  BlfKHl  V.  Goodrich.  9  Wend.  OS;  24  Am.  Dee.  121;  Drew  v. 
Pedlar,  87  Gal.  443;  22  Am.  St.  Rep.  257. 

26  Finch  V.  Parker,  49  N.  Y.  1. 

27  Lee  V.  Munn,  1  Moore,  481;  Curlin?  v.  Shuttloworth,  H  Ring.  121. 


551  MUXEY    PAID.  §  879 

liable  for  damages  as  well.-'^     But  where  a  party  makes  a  pur- 
chase from  an  innocent  agent,  who  afterwards  parts  wath  the 
money  of  his  principal,  and  it  afterwards  transpires  that  such 
purchase  avails  the  purchaser  nothing,  no  right  of  legal  com- 
plaint lies  against  the  agent.^^     So,  also,  wdiere  a  purchaser  at 
a  sale  under  a  decree  in  foreclosure  suit,  which  decree  was  void 
because  grantee  of  the  mortgagor  was  not  made  a  party,  an  action 
will  not  lie  to  recover  back  the  money  paid  them  on  his  bid.^*^ 
But  where  plaintiif  bought  a  lot  and  paid  taxes  thereon,  and 
afterwards  discovered  that  the  defendant  had  previously  sold  it, 
and  the  defendant  knew  of  this  former  conveyance,  and  that  the 
money  was  fraudulently  obtained,  the  procurement  by  defendant 
of  a  full  title  to  the  lot  will  not  bar  the  plaintiff's  recovery  of 
the  purchase  money  and  interest.^^     And  where  the  sale  of  a 
city's  property  was  without  authority,  the  plaintiff  is  not  required 
to  surrender  the  property  before  bringing  an  action  for  re- 
covery back  of  the  purchase  money .^^     jje  is  not  required  to 
transfer  either  the  property  or  the  possession  to  the  corporation 
before  the  commencement  of  the  action.^^ 

§  879.  Essential  averments  —  demand  —  ofifer  to  perform.  To 
recover  back  purchase  money  on  the  ground  of  a  breach  of 
covenant,  the  complaint  must  allege  a  breach  of  covenant.^*  It 
ig  necessary  for  the  plaintiff'  to  aver  his  readiness  and  willing- 
ness to  fulfill  at  the  time  and  place  agreed.^^  But  the  purchaser 
is  not  bound  to  make  an  absolute  tender  of  performance;  a  con- 
ditional offer  to  perform  is  sufiicient.^^  An  offer  to  perform 
is  necessary;  mere  readiness  is  not  sufficicnt.^^     The  bringing 

2S  Hanson  r.  Rohardoan,  Peake's  N.  P.  C.  10.3;  Kent's  Com.  630, 
nsi;  Mauri  v.  Iloffernan,  1.3  .Tolins.  58;  Bank  of  Rochester  v, 
Monteath.  1  Den.  402;  43  Am.  Dec.  G81;  Mills  v.  Hunt.  20  Wend. 
431. 

20  Enpels  V.  TTeatly.  r>  Cal.  13.5. 

30  BojTfj.s  V.  Ilarprave,  Ifi  Cal.  559. 

31  Alvaroz   v.   Bnuinan.  7  Cal.  .503;  68  Am.   Dec.  274. 

32  MoCrarken  v.  San  Franfisco,  16  Oal.  .501. 

33  iTer/.o  V.  San  Franfisco.  .33  Cal.  134. 

34  Willis  V.  Prinini.  21  Tex.  380. 

3'.  Portor  v.  Rose.  12  .Tt^lins.  2(>f):  7  Am.  Deo.  306. 

3"  Rol)1>  V.  Montpomci-j'.  20  .Johns.  1.5;  Wosf  t.  Emmons.  5  Id.  179; 
To))pinK  V.  Root.  5  Cow.  404;  Rawson  v.  .Tolinson,  1  East,  203; 
Belllnpfr  v.  Kltts,  6  Barb.  273. 

37  LoBtor  V.  .Tewett,  11  N.  Y.  ).":'.:  \\illi.'inis  v.  Ilealey,  3  Den.  363; 
Johnson  v.  Wypant.  11  Wend.  48. 


§  8S0  I'ORMS   OF   COMPLAINTS.  552 

of  the  action  is  not,  li(»\\e\oi-,  a  sullieient  demaud.  A  con- 
vevance  siiould  bo  demanded  and  leiutsctl,  and  a  reasonable  time 
allowed  lor  its  executioii.^**  It  is  incumbent  upon  the  purchaser 
to  oU'er  to  peri'orni  on  his  part,  or  to  show  that  at  the  time 
performance  was  due  on  the  part  of  the  vendor  he  could  not 
furnish  a  good  title  to  the  land.^"  And  the  purchaser  can 
maintain  no  action  upon  a  contract  of  sale  which  he  is  not  en- 
titled to  rescind,  without  full  performance  on  his  part  prior 
to  the  default  of  the  vendor,  and  not  having  alleged  or  proved 
such  performance,  he  can  not  maintain  an  action  to  recover 
purchase  money  paid  in  part  performance  of  his  contract,  while 
it  is  still  in  existence,  and  uncompleted.*"  But  when  a  contract 
of  sale  and  purchase  of  land  is  abandoned  or  rescinded  by  the 
parties,  the  purchaser,  though  in  default,  may  recover  back 
installments  paid  upon  the  purchase  money,  less  the  actual 
damage  to  the  vendor  occasioned  by  his  breach  of  contract.*^ 
And  it  is  not  necessary  in  order  to  entitle  the  purchaser  to 
recover,  that  the  complaint  should  state  that  the  plaintiff  was 
ready,  able,  and  willing  to  carry  out  the  terras  of  the  contract, 
and  no  evidence  need  be  introduced  at  the  trial  to  prove  that 
fact.''^ 

§  880.  Interest,  when  allowed.  The  plaintiff  may  recover  in- 
terest on  the  deposit  money  recovered,  from  the  time  of  de- 
mand;*^ and  on  money  in  his  hands  lying  idle,  ready  to  com- 
plete the  contract.'** 

38  Fuller  v.  Hubbard,  G  Gow.  13;  16  Am.  Dec.  423;  Hackett  v. 
Huson,  3  Wend.  249;  Foote  v.  West,  1  Den.  544;  Lutwoller  v. 
Linnell,  12  Barb.  512.  To  the  contrary  are,  Drigjys  v.  D wight,  17 
Wend.  71;  31  Am.  Doc.  283;  Flynn  v.  McKeon,  6  Duer,  203. 

39  .Joyce  V.   Shafer,  97  Cal.  33.5. 

40Easton  v.  Montgomery.  90  Cal.  .307;  2.5  Am.  St.  Rep.  123; 
Townsond  v.  Tnfts.  9.5  Cal.  257;  29  Am.  St.  Rep.  107. 

41  Cloaiy  V.  Folger,  84  Cal.  310;  IS  Am.  St.  Rep.  187;  Drew  v. 
Pedlar.  87  Cal.  443;  22  Am.  St.  Rep.  257;  Bradford  v.  Farkhnrst, 
90  Cal.  102;  31  Am.  St.  Rep.  189;  Fhelps  v.  Brown.  95  Cal.  572; 
Sliively  v.  Water  Co.,  99  id.  2.59. 

42  Merrill  v.  Merrill,  102  Cal.  317;  and  see  Chatfield  v.  Williams, 
85  id.   .518. 

43  Farqnhar  v.  Farloy,  7  Taunt.  .592. 

44  Sherry  v.  Oke,  3  Dowl.  Pr.  C.  349. 


553  MONEY  PAID.  §§  881,  883 

§  881.   To  recover  back  a  wager. 

Form  No.  2iS. 

[Title.] 
The  plamtitt'  complains^,  and  alleges: 

I.  That  on  the    day  of    ,   18..,  at 

,  the  plaintilt'  deposited  in  the  hands  of  the  de- 
fendant, as  stakeholder,    dollars,  which  was  to 

abide  the  event  of  a  wager  made  between  the  plaintitf  and  one 
A.  B.,  on  tlie  result  of  [here  state  what,  as  election,  race,  or 
otherwise] . 

II.  That  such  wager  was  in  violation  of  the  statute  entitled 

'•  An  act,"  etc.  [title  of  act],  passed ,  and  the  acts 

amendatory  thereof  and  supplementary  thereto. 

III.  That  no  decision  has  as  yet  been  rendered  upon  said 
election  [race  or  otherwise] ;  and  that  the  defendant  still  retains 
said  money  as  stakeholder. 

IV.  That  on  the  day  of  ,  18.  .,  the 

plaintiff  demanded  the  return  of  said  money  of  the  defendant. 

V.  That  the  defendant  has  not  returned  or  paid  back  the 
same.^'' 

[Demand  of  Judgment.] 

§  882.  When  action  lies.  At  common  law,  a  wager  made  in 
respect  to  matters  not  affecting  the  feelings,  interest  or  character 
of  third  persons,  or  the  public  peace,  or  good  morals,  or  public 
policy,  is  valid,  and  can  be  enforced.  In  many  of  the  states 
statutes  have  been  passed  for  the  discouragement  of  gaming, 
which  give  a  right  of  action  for  money  lost  at  play  or  on  a 
wager.  In  California,  where  an  illegal  wager  is  made,  the 
parties  to  it  may,  before  the  wager  is  decided,  recover  their 
stakes  from  each  other,  or  from  the  stakeholder.  But  after  the 
money  has  been  lost  or  won,  and  the  result  generally  known, 
neither  party  can  recover  from  each  other,  nor  from  the  stake- 
holder, if  he  has  paid  over  the  money.  In  such  state,  betting 
on  a  horse-race  is  against  pnljlic  policy,  and  included  within 
the  foregoing  rule."*"  There  seems  to  be  no  satisfactory  reason 
for  the  distinction,  as  made  l)y  the  English  cases,  between  ac- 
tions rlirectlv  between  the  parties  to  the  wager  and  actions  be- 
tween the  loser  of  a  bet  a.nfl  Ibe  stakeholder,  if  one  has  been 

45  For  anothor  form,  ransnlt  0'Mal<"y  v.  Re<^se,  0  P.nrb.  on.S:  Bolts 
V.  Bnflio.  14  Al>h.  Pr.  270. 

•f.  .Tf.hnson  v.  nns«ell,  .17  Cal.  072:  TTill  v.  Kifid,  4.1  id.  01.-,;  Crirlley 
V.  Dom.  'u  ill.  78;  40  Am.  Bep.  110. 

70 


g  S83  rUK.MS   Ol'    COMPLAINTS.  651- 

oin]>h>vt'il.''  lUii  where  au  ael  inakcsj  wagers  ou  horse-races  and 
the  hoklhig  ol'  stakes  eriiuiual  oU'enses,  one  who  ha^;  deposited 
luonev  with  a  stakeliolder  can  not  recover  it,  ahhough  the  race 
lias  not  come  oll'."**^ 

in  Kansas,  money  placed  in  the  hands  of  a  stakeholder,  ou 
an  illegal  bet  on  elections,  may  be  recovered  by  the  depositor, 
on  (K'uumd,  at  any  time  before  it  is  paid  over  to  the  winning 
party.'*'"'  In  Michigan,  money  lost  at  play  or  on  a  horse-race 
may  be  recovered  as  money  had  and  received.^'" 

§  883.  Essential  allegations  —  demand.  An  action  to  recover 
back  money  lost  at  play  .  is  not  an  action  for  a  penalty  or  for- 
feiture.'^^ The  complaint  in  such  action,  if  founded  on  statute, 
must  be  special,  setting  out  the  facts,  and  bringing  the  plaintiff 
within  the  statute  by  force  of  which  he  claims  to  recover. '^^  The 
complaint  is  obnoxious  to  a  motion  that  it  be  made  more  definite 
and  certain,  unless  it  states  the  facts  necessary  to  show  clearly 
under  which  section  of  the  statute  the  action  is  brought. ^^  As 
the  remedy  in  such  action  is  given  by  statute,  the  plaintiff  must 
by  his  complaint  bring  himself  within  its  provisions.^*  The 
count  in  a  complaint  stating  that,  on  a  day  named,  the  defend- 
ant received  a  specified  sum  belonging  to  or  on  account  of  the 
plaintiff,  and  which  is  now  due,  being  contrary  to  the  provisions 
of  the  statute  designating  it,  is  not  demurrable  for  not  stating 
facts  sufficient  to  constitute  a  cause  of  action.^^  An  action 
against  a  stakeholder,  to  recover  money  deposited  on  an  illegal 
wager,  may  be  maintained  without  previous  demand,  when  the 
money  has  been  paid  over  before  the  action.^®     In  such  an  action 

4T  .Johnson  v.  Russell,  .37  Cal.  070. 

48  Sutpliin  V.  Crozier,  32  N.  .T.  Jj.  462;  seo  Bybee  v.  Burbank,  2 
Oreg.  29.5. 

40  Reynolds  v.  MoKinney.  4  Kan.  94:  89  Am.  Dee.  002;  .Tenninps 
V.  Reynolds,  4  Kan.  110. 

50  Grant  v.  TTamilton,  .",  McLean.  100.  An  action  aprainst  the 
owners  of  a  faro-bank  may  be  maintainofl  by  a  plaintiff  for  the 
recovery-  of  money  lost  thereat  by  one  who  held  the  same  in  trust 
for  the  plaintiff.     Pierson  v.  Fuhrmann.  1  Col.  App.  187. 

51  Arrieta  v.  Morrissey.  1  Abb.  Pr.  (N.  S.)  4.39;  but  see  Cooper  v. 
Rowley,  29  Ohio  St.  .547. 

52  1.5  .Tohns.  5;  Moran  v.  Morrissey,  IS  Abb.  Pr.  131. 

53  Arrieta  v.  Mon-issey,  1  Abb.  Pr.  (N.  S.)  439. 

54  I.anirwortliy  v.  Broomley,  29  ITow.  Pr.  92. 
-•'  Betts  V.  Baclie,  9  Bosw.  014. 
SfiRiickman  v.  Pitcher,  1  N.  Y.  392. 


555  MOi^EY  PAID.  §§  884-886 

interest  is  recoverable  i'rom  the  time  of  demand,  e.  g.,  from  tlie 
commencement  of  the  action.^^  In  Xew  York,  in  an  action  to 
recover  money  lost  at  play,  since  the  statute  gives  the  action 
only  for  losses  exceeding  twenty-live  dollars  at  one  sitting,  and 
requires  it  to  be  brought  within  three  months  after  payment,  the 
defendant  is  entitled  to  require  the  plaintiff  to  specify  in  his 
complaint  the  amount  lost  at  each  sitting,  and  the  time  of  pay- 
ment. It  is  not  sufficient  that  these  facts  might  be  called  forth 
by  requiring  a  bill  of  particulars.^^ 

§   884    By   landlord,    against   tenant,    for    repayment   of   tax. 
Form  No.  2i<)- 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18 .  . ,   at 

,  the  plaintiff  and  the  defendant  entered  into  an 

agreement,  of  which  the  following  is  a  copy  [set  forth  lease  or 
agreement] . 

II.  That  there  was  duly  levied  and  assessed  upon  said  premises 
for  the  year  18..,  and  while  the  covenants  of  the  aforesaid 
agreement  were  in  full  force,  and  the  defendant  in  possession 

of  the  premises  by  virtue  thereof,  a  tax  of dollars, 

which  the  defendant  neglected  to  pay. 

III.  That  by  reason  thereof,  the  plaintiff  was,  on  the 

day  of ,  18.  .,  compelled  to  pay  the  said  sum  of 

dollars,  with dollars  arrearages  of 

interest,  and  per  cent.,  amounting  in  the  whole 

to dollars. 

IV.  That  defendant  ha.s  repaid  no  part  thereof  to  plaintiff. 

[Demand  of  Judgment.] 

§  885.  Demand.  'I'lic  lessor's  right  of  action  is  perfect  with- 
out a  previous  demand  of  the  tenant.'''^ 

8  886.  Illegal  taxes.  In  an  action  to  recover  back  illegal 
taxes,  it  is  not  iuifriciciil  to  avor  Hint  tlie  valuation  of  the  prop- 
erty is  "unjust,  flispropf)H  ionorl,  niul  iinfMpial."  The  complaint 
must  state  specifically  wherein  ii  is  so.^'"     An  action  can  not  be 

nTTJurkman  v.  ritehor,  20  X.  Y.  0;  l.T  Rarb.  .''.r>0. 

M  Arrietii  v.  Morrissey.  1   A1>1k  TM-.  (X.  S.)  4M0. 

f^f*  fJarrier  v.  Tlannali.  r,  T)iiPr,  L'r,2. 

«"r;iiy  V.  Wasliburn.  2''.  Cal.  Ill:  spe.  nlso.  Died-idi  v.  ^iMvor  of 
Npw  York,  !")  Ilun.,  421;  Dowcy  v.  Board  of  Suiiervisors,  etc.,  2  id. 
302. 


g  S87  I'Olt.MS    01'    CO-MI'LAINTS.  550 

iiiaiiUaiiiod  to  reoovor  back  money  voluntarily  paid  in  satisi'ac- 
tion  of  an  illegal  tax.*'^  And  in  the  absence  oi'  acts  amounting 
to  duresss  or  coercion,  tUe  payment  of  a  tax  is  voluntary,  al- 
thougii  made  under  protest.*^^  The  complaint  in  an  action 
against  a  tax  collector  in  his  ollicial  capacity  to  recover  an  amount 
of  money  alleged  to  have  been  illegally  collected  from  the  plain- 
tiff as  taxes,  must  aver  the  fact  of  the  defendant  being  such 
otHcer.''^  In  an  action  to  recover  a  special  assessment  of  taxes, 
alleged  to  have  been  paid  under  protest  to  the  defendant,  a 
complaint  alleging  that  the  assessment  was  erroneous;  that,  be- 
fore paying  the  same,  the  defendant  was  notified  in  writing  that 
it  was  illegal  and  void;  and  that  suit  would  be  commenced  to  re- 
cover it,  was  held  to  state  facts  sufficient  to  constitute  a  cause 
of  action.^'* 

§  887.  Against  carrier,  to  recover  money  in  excess  for  freight. 
Form  No.  220. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day   of    ,   18..,   at 

,  the  defendant  agreed  with  the  plaintiff  to  trans- 
port from to ,  and  to  deliver  to  him 

certain  goods  of  the  plaintiff,  for  the  sum  of dollars. 

II.  That  the  said  sum  of dollars  was  a  reason- 
able sum  to  be  paid  therefor. 

III.  That  the  defendants  entered  upon  the  performance  of 
said  agreement,  and  transported  said  goods. 

IV.  That  on  the  arrival  of  said  goods  the  plaintiff  demanded 
said  goods  of  the  defendant,  and  was  ready  and  willing,  and 
offered  to  pay  to  the  defendants  for  transporting  the  same,  the 
said  sum  of dollars. 

Y.  That  the  defendant  refused  to  deliver  said  goods  to  the 

plaintiff,  unless  he  would  pay  to  the  defendant 

dollars  for  transporting  the  same. 

VI.  Tliat  on  the    day  of   ,  18 .  . ,  at 

the  plaintiff  paid    dollars  to  the 

defendant  to  obtain  delivery  of  said  goods,  which  sum  he  paid 

ci  Youncer  v.  Rnpervisors,  GS  Cal.  241. 

62  Doar  v.  Yarnum,  80  Cal.  80. 

63  Baldwin  v.  Ellis,  08  Cal.  495. 

«4  Rhoiip  V.  Willis.  2  Tdalio.  107.  See  further,  as  to  sufficiency  of 
complaint  in  such  action,  Dear  v.  Yarnum,  80  Cal.  80;  Cooper  v. 
Chamberlin,  78  id.  4.50. 


557  MONEY  PAID.  §§  888-890' 

under  protest,  and  expressly  denying  the  defendant's  right  to 
claim  it,  and  otherwise  periormed  all  the  conditions  of  said 
agreement  on  his  part. 

VII.  That  the  defendant  has  not  repaid  the  same,  nor  any 
part  thereof. 

[Demand  of  Judgment.] 

§  888.  Concurrent  acts.  Delivery  of  freight  by  the  carrier, 
and  payment  of  freight  money  by  the  owners,  are  concurrent 
acts,  and  neither  party  is  bound  to  perform  his  part  of  the  ship- 
ping contract  unless  the  other  is  ready  to  perform  the  correlative 
act.^ 

§  889.   To  recover  back  freight  on  failure  of  carriage. 
Form  No.  22i. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18..,  at 

,  the  defendant  agreed  with  the  plaintiff  to  trans- 
port from to ,  and  to  deliver  to  him 

certain  goods  of  the  plaintiff,  for  the  sum  of dollars. 

II.  That  on  the   day  of   ,  18 .  . ,  the 

plaintiff  paid  to  the  defendant  the  sum  of dollars, 

as  an  advance  payment  for  said  transportation,  and  otherwise 
performed  all  the  conditions  of  said  agreement  on  his  part. 

III.  That  the  defendant  has  not  transported  said  goods,  nor 
delivered  the  same  to  the  plaintiff. 

IV.  That  on  the   day  of   ,  18.  .,  at 

,  the  plaintiff  demanded  of  the  defendant  repay- 
ment of  said  sum  of dollars  advanced. 

V.  That  he  has  not  repaid  the  same. 

[Demand  of  Judgment.1 

S  890.  When  action  lies  —  in  general.  Where  money  is  paid 
by  one  person,  in  consideration  of  an  act  to  be  done  by  another, 
and  the  act  is  not  performed,  the  money  so  paid  may  be  re- 
covered back.*'*'  Contracts  for  carrying  freight  forrri  'no  excep- 
tion to  the  general  law,  that  where  money  is  paid  for  an  act 
to  be  done  by  another,  and  the  act  is  not  done,  the  money  may 

"f- FrDtliintrliam  v.  .Tr^nkins.  1  Tal.  4^:  ."2  Am.  D(>f.  2Sn;  and  spp 
Allon  V.  Ttnilrnad  To..  100  N.  O.  .'?07:  Raiulall  v.  Tliiilrnad  ^c.  10S 
Id.  012:  MfKihbfn  v.  Poyle,  17.".  Ppnn.  St.  .^.70. 

♦'■'^Roina  v.  Cross,  C  Cal.  ?A\  see  T:iylor  v.  T'.oavrrs.  4  K.  D.  Smith, 
215. 


§§801,81)"^  FORMS    OF    COM  I'LAINTS.  558 

be  recovered  back,^"  Tlius  I'reiglit  paid  in  advance  lor  trans- 
portation of  goods  is  to  be  repaid  in  tlie  event  of  tiieir  not  being 
earrieil,  unless  there  be  a  special  agreement  to  the  contrary.*'" 
This  rule  is  not  subject  to  any  usage  to  the  contrary.*'^  Ad- 
vanced freiglit  can  be  recovered  back  by  the  charterer,  in  case 
of  the  loss  of  the  ship,  or  nonperformance  of  the  voyage, 
whether  by  fault  of  the  master  or  notJ*^ 

((   891.   By  surety  against  principal    for  payment  on    appeal 
"bond. 

Form  No.  222. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18 .  .,  at 

,  a  judgment  was  duly  given  and  made  in  the 

court  of   ,  against  the  defendant, 

in  favor  of  one ,  f or dollars,  from 

which  the  said  defendant  appealed. 

II.  That  on  the day  of ,  18.  .,  at  the 

request  of  defendant,  the  plaintitt'  executed  an  undertaking,  a 
copy  of  which  is-  hereto  annexed. 

III.  That  on  the day  of ,  18.  .,  the 

said  judgment  was  affirmed  hy  the  Supreme  Court  of  this  state, 
with dollars  costs  and  damages. 

IV.  That  on  the day  of  ,  18.  .,  the 

plaintiff  paid dollars,  upon  the  said  undertaking, 

to  the  said 

V.  That  the  defendant  has  not  paid  the  same  to  plaintiff,  nor 
any  part  thereof. 

[Demand  of  Judgment.] 
[Copy  of  the  undertaking.] 

§  892.  When  action  lies  —  essential  allegations.  Unless  there 
is  a  special  promise,  the  defendant's  legal  liahility  to  pay  is  an 
essential  fact."^!  But  in  a  suit  hy  a  surety  against  his  principal 
to  recover  back  money  paid  hy  him  on  a  judgment  against  him 
for  the  dcht  of  his  principal,   a  transcript   of  the  judgment 

fi7  Keina  v.  Cross.  G  Cal.  29. 

OS  Phelps  V.  Williamson.  5  Sandf.  578;  Griffgs  v.  Austin,  .3  Pirk. 
20;  1.5  Am.  Dec.  175;  Harris  v.  Rand,  4  N.  H.  259,  555;  17  Am.  Dec. 
421;  .3  Kent's  Com.  220. 

««  Emery  v.  Dnnbar,  1  Daly,  408. 

Tf'T.nwson  v.  Worms,  6  Cal.  365. 

Ti  2  Oreenl.  Ev.  103. 


559  MONEY  PAID.  §§  893,  894 

need  not  be  annexed  to  the  complaint.'-  x\,nd  where  a  defend- 
ant undertook  to  pay  any  judgment  which  M.  might  recover 
against  L.,  and  the  plaintiff  undertook  to  save  him  harmless 
from  such  payment  to  the  extent  of  five  hundred  dollars,  which 
sum  he  deposited  with  the  defendant  for  that  purpose,  the 
relation  of  principal  and  surety  did  not  exist  between  them. 
Under  these  circumstances,  the  deposit  could  not  become  the 
money  of  the  defendant  till  he  had  paid  the  Judgment,  and  the 
plaintiff  is  entitled  to  recover  the  money  on  the  payment  or 
release  of  the  judgment. ^^ 

§  893.   For  repayment  of  advances  on  services. 
Form  No.  223. 
[Title.] 
The  plaintiff'  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18..,  at 

,  the  plaintiff  and  defendant  entered  into  an  agree- 
ment, whereby  the  plaintiff'  agreed  to  hire,  and  the  defendant 

agreed  to  render  his  services  to  the  plaintiff'  as , 

for  the  term  of ,  in  consideration  of  the  sum  of 

dollars,  to  be  paid  therefor  by  the  plaintiff. 

II.  That  on  the   day  of   ,  18..,  at 

,  the  plaintiff  paid  to  the  defendant  as  an  advance 

for  his  services,  to  be  rendered  thereafter,  in  pursuance  of  said 
agreement,  the  sum  of dollars. 

III.  That  the  defendant  wholly  neglected  and  refused  to  ren- 
der said  services,  although  demanded  by  the  plaintiff  so  to  do. 

IV.  That  the  defendant  has  not  repaid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

§  894.  "When  action  lies  —  demand.  The  acceptance  of  an 
order  to  pay  money,  to  be  deducted  from  a  payment  to  become 
due  under  a  contract  for  work  to  be  performed,  is  a  promise 

•72Harker  v.  Olidewell,  23  Ind.  219. 

'3  Solomon  v.  Rf^ese,  84  Cal.  35.  Tho  rights  of  sureties,  as  against 
I)rincii>als  and  r-osiiretios.  are  discussed  in  1  Tars,  on  Cont,  33; 
Pai-s.  Merc.  Law,  .",();  Balcer  v.  Martin,  3  Rarli.  fi.34  In  an  action  by 
a  surety  on  a  promissory  note  against  liis  principal  for  reimlnirse- 
nient,  tho  suretyship  not  appearing  on  tho  face  of  the  note,  a  coni- 
rilaint  Avhlch  avers  that  tho  plaintiff  signed  the  noto  as  a  surety 
oidy,  and  not  for  tho  nooommodation  of  tho  defendant,  need  not 
allege  a  request  frorp  the  defendant  to  tho  plaintiff  to  pay  the 
same.    Clanton  v.  Coward.  67  Cal.  373. 


^  ^il,)  IDHMS   OF   COMPLAINTS.  560 

to  tlio  payee,  and  the  payee  may  recover  thereon,  under  the  com- 
mon money  counts."  Where  an  agreement  has  been  rescinded 
on  a  contract  for  services,  or  performance  so  neglected  as  to 
entitle  the  plaintill  to  rescind,  a  demand  is  not  necessary  to 
enable  tiie  plaintill"  to  recover  Lack  advances.''''''  If  money  has 
been  paid  or  services  rendered  in  tlie  pcrl'ormance  of  the  con- 
ditions of  a  void  contract  by  one  i)arty  tliereto,  and  the  other 
party  fails  to  voluntarily  perform  on  his  part,  the  injured  party 
has  no  remedy  at  law  upon  the  contract.  He  may,  however, 
under  such  circumstances,  disaffirm  such  contract,  and  maintain 
his  action  at  law  to  recover  back  money  so  paid,  or  the  value 
of  services  so  rendered.'^^* 

§  895.  Suflfiicient  allegations.  In  a  complaint  for  money  ex- 
pended and  services  performed,  technical  words,  the  meaning 
of  which  is  long  established,  rather  than  phrases  of  doubtful 
import,  should  be  used.  The  complaint  ought  to  state  that  the 
money  was  expended  for  the  use  and  benefit  of  defendant,  and  at 
his  instance  and  request.  So,  in  regard  to  the  performance  of 
labor. '^'  The  plaintiff  must  allege  and  prove  nonperformance.'^* 
And  if  the  defendant  has  rescinded,  plaintiff  need  not  prove 
readiness  to  pay  the  whole  contract  price.'^^ 

74  Quin  v.  Hanford,  1  Hill,  84;  Weston  v.  Barker,  12  Johns.  278; 
7  Am.  Dec.  519;  17  Wend.  206;  McClellan  v.  Anthony,  1  Edm.  284. 

75  Raymond  v.  Bearnard.  12  Johns.  274;  7  Am.  Dec.  317;  and  see 
Utica  Bank  v.  Vai/  Gieson,  18  Johns.  48.5. 

76  King  V.  Brown.  2  Hill,  48.5;  Baldwin  v.  Palmer,  10  N.  Y.  234; 
61  Am.  Dec.  743;  Fuller  v.  Reed,  38  Cal.  99. 

77  Huguet  V.  Owen,  1  Nev.  464. 

78  Wheeler  v.  Board,  12  Johns.  363. 
78  Main  v.  King,  8  Barb.  535. 


18, 


CHAPTEE  XII. 

FOR    SERVICES,    WORK,    AND    LABOR. 

S  896.   For  services  at  a  fixed  price. 
ror)n  Ao.  224. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  bet^veen  the   clay  of 

and  the day  of ,  18 . . ,  plaintiff  rendered 

services  to  the  defendant,  at  his  special  instance  and  request, 
in  the  capacity  of  [clerk  or  otherwise]. 

II.  That  for  said  services  the  defendant  promised  to  pay 
plaintiff  a  salary  at  the  rate  of  [fifteen  dollars  per  week]. 

III.  That  the  defendant  has  not  paid  the  said  salary  [or  Uiat 
no  part  of  said  ^salary  has  been  paid,  except,  etc.] 

TDemand  of  Judgment.] 

8  897.  When  action  lies.  The  action  for  work,  labor,  and  ser- 
vices lies  upon  the  contract.  If  nothing  remains  to  be  done  by 
the  contractor  but  payment  of  tJie  stipulated  price,  plaintiff 
may  rest  upon  the  duty  raised  by  the  law  on  the  part  of  defend- 
ant to  pay  the  price  agreed,  or  he  may  plead  the  express  agree- 
ment, and  allege  performance.^  Or  excuse  for  nonperformance, 
and  allege  part  performance,^  if  the  contract  has  been  abandoned 
by  agreement,  or  rescinded  by  the  wrongful  act  of  a  party,  or  its 
execution  is  incomplete  by  reason  of  an  excuse.*  Where,  how- 
ever, there  has  been  a  written  contract,  it  must  be  produced  on 
the  trial,  or  its  absence  accounted  for.*  Where  by  the  tenns  of 
a  contract  parties  performing  labor  under  it  are  to  be  paid  at 
the  end  of  each  month,  for  the  labor  performed  to  that  time, 

1  Farron  v.  Sherwood,  17  \.  V.  227. 

2  Wolfe  V.  Howes.  20  \.  Y.  1!t7:  "."i  Am.  Dec-.  3SS. 

3  Farron  v.  Shorwoofl.  17  X.  V.  227:  Wolfe  v.  Howes.  20  i<1.  107; 
7r)  Am.  Deo.  .'',88. 

■<  riark  V.  Smilli,  H  .Tolms.  .''.20,  and  rascR  tlipre  eitod;  Cliamplin 
V.  Kiitler.  IS  id.  Kin;  Wood  v.  Edwards.  10  id.  205;  Smllli  v.  Smith, 
1  Saiidf.  2(m;;  Ladue  v.  Seymour.  21  Wrml.  <;0:  Sherman  v.  New  York 
Cent.  11.  11.  Co..  22  Barb.  2:'.'.):  Adams  v.  'i'lie  Mayor,  4  Duel",  205; 
but  see  Chew  Famj:  v.  Keefer.  10.'',  Cal.  40. 
Vol.  T— 71 


ijij  898-000  FORMS   01'   COM  I'L-VINTS.  66^ 

uud  they  are  not  paid  at  the  stipulated  time,  and  are,  by  reason 
thereof,  compelled  to  abandon  the  work,  they  have  the  right  to 
do  so,  and  are  entitled  to  recover  for  the  work  done  and  not  paid 
for.  pro  taitto,  at  the  contract  price.^ 

g  898.  The  same  —  services  of  a  substitute.  The  plaintiff  may 
recover  lV)r  work  and  services  douv  hy  his  substitute  under  a 
contract  made  by  defendajit  with  him,  provided  that  the  ser- 
vices of  a  particular  person  were  not  contracted  for,  and  that 
no  other  person  could,  under  the  contract,  till  the  place  of  the 
employee.**  Under  a  general  complaint  for  work  and  labor,  the 
])laintiir  may  recover  on  proof  of  a  special  contract  fully  com- 
])leted.'  Where  there  is  a  special  contract  between  principal 
and  agent,  by  which  the  entire  compensation  is  regulated  and 
made  contingent,  there  can  be  no  recovery  on  a  count  for  a 
qnarititin  iiicniit.'^ 

§  899.  Service  for  the  public.  Where  a  service  for  the  bene- 
fit of  the  public  is  required  by  law,  and  no  provision  for  its  pay- 
ment is  made,  it  must  be  regarded  as  gratuitous,  and  no  claim 
for  compensation  can  be  enforced.^ 

§  900.  Entire  contract.  AM i  ere  a  person  agrees  to  work  for  a 
certain  period,  at  a  certain  price,  or  to  perform  certain  services 
for  such  an  amount,  he  can  not  break  off  at  his  own  pleasure, 
and  sue  upon  the  contract  for  the  work  so  far  as  he  has  gone.^® 
In  such  a  case,  performance  is  a  condition  precedent  to  pay- 
ment.^^  In  a  suit  to  recover  for  services  for  half  a  year,  under  a 
contract  to  work  a  whole  year,  plaintiff  having  quit,  it  requires 
slight  evidence  of  assent  or  agreement  to  apportion  the  contract 
and  allow  plaintiff  to  recover.^^ '  A  contract  may  be  entire  where 
payment  is  stipulated  to  be  made  monthly,  where  a  note  was  to 
be  given  by  the  employer  for  the  last  four  months'  labor  yet 
to  be  done,  on  a  contract  of  eight  months'  duration. ^^  Where 
one  is  employed  by  another  under  a  contract,  at  a  stated  salary, 
payable  monthly  or  at  a  stated  time,  as  clerk  or  business  agent, 

6  Dobbins  v.  Hipjiins,  78  111.  440. 

6  Iveet  V.  Wilson,  24  Cal.  308. 

7  Hurst  V.  Litchfield,  39  N.  Y.  377. 

8  Marshall  v.  Baltimore  &  Ohio  R.  R.  Co.,  16  How.  (U.  S.)  314. 
J*  Anderson  v.  Bd.  Com.,  2."  Ohio  St.  13. 

if»  Hntcliinson  v.  Wetmore.  2  Cal.  311;  r,G  Am.  Dec.  337. 

n  Id. 

i2Hogan  V.  TitloAv.  14  Cal.  2m. 

13  Hutchinson  v.  Wotmore.  2  Cnl.  .311;  r>C,  Am.  Dec.  337. 


603  SERVICES,    WOKK,    XisD   LABOE.  §  901 

and  the  employee  neglects  his  business,  the  employer  is  not 
precluded  Irom  suing  lor  damages  tor  neglect,  by  payment  in 
full  of  employee's  wages,  or  by  not  setting  up  a  counterclaim  in 
an  action  by  employee  for  his  wages.^'*  Where  a  party  contracts 
for  a  consideration  in  money  to  find  a  purchaser  for  certain  lands, 
it  is  a  contract  of  employment,  and  not  a  contract  for  the  sale 
of  land  within  the  meaning  of  the  Statute  of  Frauds.  ^^  But 
where  a  part  of  the  remuneration  was  to  be  land,  the  contract 
was  entire,  and  if  void  as  to  part  under  the  Statute  of  Frauds, 
is  void  in  toto,  and  could  not  be  enforced. ^"^  But  if  services  have 
been  performed  on  such  a  void  contract,  the  injured  party  may 
disaffirm  the  contract,  and  maintain  his  action  at  law  for  ser- 
vices rendered.  ^'^ 

§  901.  Essential  allegations  —  demand.  A  declaration  for 
labor  done  or  services  performed  generally,  without  specifying 
them  in  particular,  is  good.^^  And  where  a  complaint  for  work, 
labor,  and  services  alleged  an  indebtedness  in  a  sum  certain 
therefor,  but  omitted  to  allege  specially  the  value  of  the  same 
or  a  promise  to  pay;  and  defendant,  without  demurring,  put  in 
an  answer  denying  indebtedness,  admitting  services  performed, 
and  setting  up  payment  in  full,  and  there  was  a  verdict  for 
plaintiff;  whatever  the  defects  of  the  complaint  may  bo,  they 
were  cured  by  defendant's  pleading  and  by  the  verdict. ^^  If 
the  contract  contains  special  ]iro visions  as  to  the  mode  of  per- 
formance, the  proper  mode  of  declaring  is  still  on  the  contract 
itself,  and  not  on  the  general  counts,  setting  it  out  at  length, 
or  in  substance,  with  proper  averments,  to  show  that  the  con- 
ditions to  the  plaintiff's  right  of  recovery  have  all  been  complied 
with.^*'  No  demand  is  necessary.  Bringing  the  action  is  a 
sufficient  demand  on  a  contract  to  pay  generally,  and  without 
time  or  terms  specified.     It  is  a  debt  payable  when  the  services 

14  Ptrnldard  v.  Treadwell,  20  Cal.  2M. 

1ft  ITeyn  v.  Philipfi.  ?,7  Oal.  r,20. 

i«  Crawford  v.  MoiTt>ll.  k  .Tolins.  2.".":  Van  Alstino  v.  Wimple,  5 
Cow.  "[PA. 

'TKinp  V.  Brown.  2  Hill.  4«.":  Baldwin  v.  Palni<T,  10  N.  Y.  2:^2; 
r,1  Am.  Def.  74.''.:  Fuller  v.  Ttoed.  .?.S  Cal.  DO. 

i«Edward.s  v.  Xifliols,  .",  Day.  10;  foinitare  Williamette  Falls 
Transportation  Co.  v.  Sinitli,  1  Orep.  171. 

ifiMrManns  v.  Opliir  S.  M.  Co.,  4  Nov.  in. 

20  Adams  v.  Mayor,  otr.,  of  Now  York.  4  Dner.  2n.^»:  Atlcinsnn  v. 
Collins,  no  Bnrh.  4?.0;  S.  r,.  f)  .\M..  Pr.  P,'?i:  Brown  v.  Colie,  1  E.  D. 
Sniitli.  20.-,:  Wvfkoff  v.  Mvcis,  -H   \.  V.   14:3. 


§  UU^  l"01vM8    OF    COMrLAIXTS.  5()i 

are  performed,  aiul  no  previous  (k'lnand  of  payment  la  rLH^uired.-' 
Au  express  agreement  lor  extra  pay  must  be  shown  where  a  party 
works  for  a  monthly  salary.—  A  count  in  a  eomphiint  aileg-ing 
that  the  defendant  is  indebted  to  tlie  phiintilt  m  a  certain  sum 
of  money  ou  account  of  work,  labor,  antl  services  performed  at 
the  request  of  the  defendant,  and  that  tlie  defendant  has  not 
paid  tlie  same,  nor  any  part  thereof,  is  not  subject  to  the  ob- 
jection upon  general  demurrer  that  it  is  not  stated  by  whom 
the  work  was  performed.^  But  a  complaint  alleging  a  con- 
tract to  perform  labor  in  a  certain  year,  for  a  gross  sum  of  money, 
is  bad  on  demurrer  which  fails  to  allege  what  the  plaintiffs  con- 
tracted to  do,  or  how  much  work  was  to  be  done,  or  when  it  was 
done,  or  its  value.^'*  A  complaint  wdiich  alleges  that  "  an  agree- 
ment was  entered  into  between  tlie  plaintiff  and  the  defendants," 
whereby  the  latter  agreed  to  pay  the  former  the  price  of  labor 
furnished  the  latter,  can  not  be  said  to  count  upon  a  written  con- 
tract alone,  and  evidence  of  a  verbal  contract  between  the  par- 
ties is  admissible  in  support  of  the  allegation,  and  the  fact  that 
a  written  agreement  is  proved  does  not  preclude  evidence  of  a 
verbal  promise  to  pay  for  the  labor  furnished.^^  In  an  action 
against  a  corporation  for  services,  an  allegation  that  the  plaintiff 
was  employed  by  the  defendant,  through  its  secretary,  is  a 
sufficient  allegation  of  employment  by  the  corporation,  though 
it  is  better  pleading  to  omit  reference  to  the  secretary .^^  An 
averment  that  a  corporation  made  and  entered  into  an  agree- 
ment by  its  president,  is  sufficient,  as  against  a  general  demurrer. 
If  the  president,  as  such,  had  no  authority  to  enter  into  the 
contract,  it  is  matter  of  defense.^''' 

§  902.  Joint  services.  Where  two  persons  are  employed  by  a 
claimant  of  a  tract  of  land  to  procure  a  confirmation  of  the  same, 
such  service  is  not  joint,  and  a  separate  action  may  be  maintained 
by  such  agents  for  their  expenses  thus  incurred. ^^ 

21  T>ako  Ontario  R.  U.  Co.  v.  Mason,  16  N.  Y.  4.51;  Rrnst  v.  Bartle, 
1  .Tolins.  Ca.s.  .310. 

22  Ta.ny  v.  Halleck,  ,0  Oal.  10K. 

23  Smith  V.  Waito.  108  Oal.  872:  and  see  Bnsta  v.  Wardall.  .8  S. 
Dak.  141. 

24  Calhoun  v.  Oirardine,  13  Col.  10,8;  compare  Small  v.  PofPeUr 
bargrer.  .82  Neb.  2.84;  Tracy  v.  Tracy,  .59  Hun,  1. 

25  Chew  Farnc:  v.  Keefer,  108  Cal.  4fi. 
2«Snllivan  v.  Milliner  &  Min.  Co.,  77  Cal.  41R. 
27^falnne  v.  Cresr-ent,  etr..  Transp.  Co..  77  Cal.  38. 

a^Tonner  v.  Hntr-binson,  12  Cal.  12f5;  see  Sullivan  v.  Milling  & 
Mining  Co..  77  id.  -llS. 


565  SEEYICES,    WORK,    AND    LABOE.  §§  903-905 

§  903.  Jurisdiction.  A  British,  seaman  ou  board  a  British 
vessel  of  which  a  Britisli  subject  is  master,  may,  when  discharged 
by  the  master  in  a  port  of  the  United  States,  without  any  fault 
on  the  part  of  the  seaman,  sue  for  and  recover  his  wages  in  a 
'state  court.^ 

§  904.   For  services  at  a  reasonable  price. 

FoiDl    No.    22^. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  between  the day  of ;.  18.  .,  and 

the day  of ,  18. .,  at ,  he 

[made  sundry  repairs  on  several  articles  of  furniture]  for  the 
defendant,  at  his  request. 

II.  That  the  said  services  were  reasonably  worth 

dollars. 

III.  That  defendant  has  not  paid  the  same  [or  that  no  part 
thereof  has  been  paid,  except,  etc.] 

[Demand  of  Judgment.] 

§  905.  When  action  lies  —  allegations.  Tlie  general  rule  of 
law  is,  while  a  special  contract  remains  open  or  unperformed, 
the  party  whose  part  of  it  has  not  been  done  can  not  sue  in 
indebitatus  assumpsit,  to  recover  a  compensation  for  what  he  has 
done,  until  the  whole  shall  be  completed.  But  the  exceptions 
from  that  rule  are  cases  in  which  something  has  been  done  under 
a  special  contract,  but  not  in  strict  accordance  with  it;  but  if  the 
other  party  derives  any  benefit  from  the  labor  done,  the  law  im- 
])]ies  a  promise  on  his  part  to  pay  such  a  remuneration  as  the 
work  is  worth;  and  to  recover  it  an  action  of  indebitatus  assump- 
sit is  maintainable. ^°  The  services  must  have  been  rendered  in 
pursuance  of  an  agreement,  express  or  implied,  that  tliey  were 

20  Pnph  v.  Clillam.  1  Cal.  4Sr>.  In  an  aftion  for  the  recovery  of 
(laniaKos  for  a  wronfjful  (llsfharpe  from  employmont,  the  plaintiff 
1100(1  not  allepo  affirmatively  that  ho  ondoavored  to  make  the 
damaffoa  as  litrht  as  i>08siblo  by  procuring  other  employmont.  Mei'- 
rill  v.  Rlanohnrd.  40  N.  Y.  Rupp.  4S;  7  App.  Div.  107. 

^f>  Dormott  v.  .Tones,  23  How.  (IT.  S.)  220.  A  complaint  or  petition 
averring  a  oontraot  of  employment,  tho  rendering  of  services  and 
oxpenditnre  of  monoys  in  its  lu'i-formance.  the  plaintiff's  wrongful 
disfhargo  by  the  defendant  :ind  tho  valn<>  of  his  services  and  ex- 
jtendltures,  loss  receipts,  states  a  cause  of  action  on  a  quantum 
virruit  and  not  one  for  darnagog  foi-  breach  of  contract.  Glover  v. 
Henderson,  120  Mo.  r,(\7;  41  Am.  St.  i:ei«.  U):>. 


^^  U(.)(.i,  '.107  i'Oli.Mfci    Ui''    CUMl'LAlisTS.  5GG 

to  bo  i)ai(l  lor.-''  Hut  a  person  cnjoyijig  the  benolit  of  tlic  ser- 
vices of  another  is  presunietl  to  be  bound  to  [lay  therefor  what 
they  are  reasonably  worth.''-  lUit  tliis  j)resuni])liou  may  l.>e 
rebutted  by  proof  of  agreement  at  a  fixed  amount. ^^  And  where 
a  hired  jierson  continues  in  em})loyment  after  the  term  of  the 
conti'ael,  the  presumption  is  that  the  same  wages  are  to  be  con- 
tinued under  the  new  emph)yment,  and  the  servant  can  not  I'c- 
cover  on  a  quantum  meruit?'^  If  the  complaint  alleges  no  special 
contract,  plaint  ill'  can  recover  oidy  what  his  services  are  worth/''^* 
In  an  action  on  a  quantum  meruit,  for  sea-vices  rendered,  excuses 
for  not  performing  the  contract  need  not  be  set  up.^^  The  com- 
plaint in  an  action  against  a  guardian,  to  recover  from  his  ward's 
estate  for  services  rendered  them,  must  allege  that  the  employ- 
ment of  the  plaintiff  w-as  a  reasonable  and  proper  expense  in- 
curred by  the  guardian. ^^ 

§  906.  Services  of  wife.  Proof  that  the  plaintiff  was  wife  of 
one  of  the  parties  defendant  defeats  the  implication  of  a  con- 
tract as  on  a  quantum  mcruit.^^ 

§  907.  Subsequent  promise.  Where  a  promise  to  pay  is  made 
subsequent  to  the  completion  of  the  services,  it  must  be  show^n 
that  the  services  were  rendered  at  the  defendant's  request.^^ 

31  Maltby  v.  Harwood,  12  Barb.  473;  Livingston  v.  Ackeston,  5 
Cow.  531;  Williams  v.  Hutchinson.  3  X.  Y.  312;  53  Am.  Dec.  301. 

32  Moulin  v.  Columbet,  22  Cal.  509. 

33  Id. 

34  Nicholson  v.  Patehin,  5  Cal.  475:  and  see  Weruli  v.  Oollins,  87 
Iowa,  548;  Inilioff  v.  House,  3G  Neb.  28.  Kecoveiy  on  quantum 
meruit.  See  Beers  v.  Kuehn,  84  Wis.  33;  Robert.s  v.  Wood  Working 
Co.,  Ill  N.  C.  432;  Stokes  v.  Taylor,  104  id.  394;  Lit*ti-ell  v.  Wilcox, 
9  Mont.  97;  Whitton  v.  Sullivan,  96  Cal.  480.  When  the  complaint 
declares  upon  an  express  contract  for  a  street  impi'ovement,  and 
there  is  no  allegation  as  to  what  the  work  done  was  worth,  there 
can  be  no  recoveiy  upon  quantum  meruit-  Kaiscli  v.  San  Francisco, 
80  Cal.  1. 

35  Crole  V.  Thomas,  19  Mo.  70. 

36  Wolfe  V.  Howes,  20  N.  Y.  197;  75  Am.  Dec.  -388. 
sTCaMwell  v.  Young,  21  Tex.  800. 

3SAngulo  V.  Sunol,  14  Cal.  402;  Coleman  v.  Burr,  93  N.  Y.  17;  45 
Am.  Rep.  UiO;  Cooper  v.  Cooper,  147  Mass.  370;  9  Am.  St.  Rep.  721. 

3»  Bartholomew  v.  .Tackson.  20  Johns.  28;  11  Am.  Dec.  237;  Frear 
V.  Ilardenbergli,  5  .Tolins.  272;  4  Am.  Dec.  350;  Parker  v.  Crane,  0 
Wend.  (U7:  sec.  also.  1  Smith's  Lead.  Cas.  (H.  &  W.  notes),  222;  see, 
also,  Ilewett  v.  Bronson,  5  Laly  (N.  Y.),  1. 


567  SERVICES,    WOKK,    AND   LABOR.  §§  908-910 

§  908.   By   carriers,   for   freight. 

Fonn  No    226. 
[Title.] 
The  plaintiff  complains,  and 'alleges: 

I.  That   on  the    day  of    ,   18..,  he 

transported  [in  his  wagon] ,  thirty  tons  of  coal,  from , 

to ,  for  the  defendant,  and  at  his  request. 

II.  That  defendant  promised  to   pay  plaintiff  the   sum   of 

.  ._ dollars  per  ton,  as  freight  thereon  [or  that  such 

transportation  was  reasonably  worth dollars]. 

III.  That  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

§  909.   For  passage  money. 

Form  No.   227. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18.  .,  he  con- 
veyed defendant  in  his  steamer,  called  the ,  from 

to ,  at  his  request. 

II.  That  defendant  promised  to  pay  plaintiff dollars 

therefor  [or  that  said  passage  was  reasonably  worth 

dollars]. 

III.  That  defendant  has  not  paid   the  same  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

§   910.    By  parent,  for  services  of  minor  son. 
Form   No.   228. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  one  A.  B.  rendered  services  [as  clerk]  to  the  defend- 
ant, at  his  request,  in  his  store  at ,  from  the 

'lay  of ,  18.  .,  to  the clay  of , 

IH.  . 

II.  That  such  services  were  reasonably  worth    

dollars  [or  allege  price  agreed,  a.«!  in  preceding  forms]. 

III.  That  the  said  A.  I'.,  was  th<'n.  ami  is  now,  under  twonty- 
one  years  of  ago.  and  IIm'  ininni'  child  of  this  plaintifT. 

TV.  That  the  dcfciidiint  has  iioi   paid  the  sninc,  nor  any  part 
thereof. 

[Dem.v.nd  or  .Ii'dgment.] 


)§  911-013  rOKMS   OF   COMl'L.VINTS.  508 


§  911.  Interest  of  parent.  Legal  iiitcii'.'^l  vests  in  a  parent 
for  llu'  work,  labor,  ami  services  of  iiis  child,  where  there  is 
no  express  agreement."*"  lUil.  iimler  an  express  agreement,  or 
where  circumstances  warrant  the  conclusion  that  it  was  under- 
stood tlnit  the  child  might  receive  his  earnings,  payment  to  such 
child  will  be  good.*^  So  where  the  father  gives  his  implied 
consent.^^  So  the  father  in.  the  above  instance  can  not  sue 
for  such  services,  even  though  he  give  notice  not  to  pay  said 
son  his  wages.*^  A  father  can  not  sue  in  his  own  name  for 
money  due  his  minor  son,  in  consideration  of  his  enlistment 
under  a  contract  made  wdth  the  father's  consent.^* 

§  912.   For  services  and  materials,  at  a  fixed  price. 

Form  No.   22^. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That   on   the    day   of    ,    18..,   at 

,  he  furnished  the  paint,  and  painted  defendant's 

house,  at  his  request. 

II.  That  defendant  promised  to  pay  him dollars 

therefor. 

III.  That  he  has  not  paid  the  same  [or  that  no  part  of  the 
same  has  been  paid,  except,  etc.] 

[Demand  of  Judgment.] 

§  913.  Demand  —  cause  of  action.  In  an  action  for  services 
and  materials  furnished,  where  ])oth  items  go  to  constitute  a 
single  cause  of  action,  it  must  be  made  so  to  appear  in  the  com- 
plaint     Bringing  the  action  is  sufficient  demand. ^^ 

40  Shute  V.  Don-.  .5  Wend.  204;  McMahon  v.  Sankey,  13.3  111.  G36; 
Lawyer  v.  Friteher,  130  N.  Y.  239;  27  Am.  St.  Rep.  .521. 

41  Id.;  Benson  v.  Remington,  2  Mass.  11.5;  McCoy  v.  Huffman, 
8  Cow.  ^. 

42  Whitiufr  V.  Earle.  3  Tifk.  201:  1.1  Am.  I)(>e.  207;  see  Burlinsame 
V.  Burlingame,  7  Cow.  92;  Keen  v.  Sprague,  3  Greenl.  77;  Man- 
chester V.  Smith,  12  Pick.  11.").  A  father  may  emancipate  his 
minor  child,  and  confer  upon  such  child  a  rijrht  to  labor  for  itself 
and  receive  the  earnings.  Stanley  v.  National  Bank,  115  N.  Y.  122; 
Beaver  v.  Bare,  104  Tenn.  St.  .58;  49  Am.  Rep.  .507. 

43  Morse  v.  Welton,  0  Conn.  .547:  16  Am.  Dec.  73;  Tnited  States 
V.  Mertz,  2  Watts,  400;  Gale  v.  Parrott,  1  N.  II.  2.S;  Eu!)anks  v.  Pefik. 
2  Bailey,  497;  Chnso  v.  Smith,  5  Yt.  .5.50. 

44  Mears  v.  Bickford.  .55  Me.  .528;  see.  also,  Simpson  v.  Buck,  5 
I^ns.  fX.  Y.)  .337. 

45  Feeter  v.  Heath,  11  Wend.  479.    Comi)laint  in  aetion-of  assumpsit 


569  SERVICES,    AVORK,    AND   LABOR.  §§  914,  915 

§  914.   By  an  attorney  for  services. 
Form  No.  230. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  between  the   clay  of   ,  18.  ., 

and  the day  of ,  18. .,  the  plaintiff  per- 
formed services  for  the  defendant,  at  his  request,  in  prosecuting 
and  defending  certain  suits,  and  in  drawing  and  engrossing 
various  instruments  in  writing,  and  in  counseling  and  advising 
the  defendant,  and  in  attending  in  and  about  the  business  of 
the  defendant. 

II.  That  said  services  were  reasonably  worth  the  sum  of 
dollars. 

III.  That  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

§  915.  When  action  lies  —  allegations.  In  an  action  by  an 
attorney  for  his  fees  it  is  necessary  to  aver  and  prove  on  the 
trial  a  retainer  or  employment  of  the  plaintiff  as  attorney  in  the 
suit  or  business  in  which  his  services  were  rendered.^**  It  is  not 
necessary  to  show  a  written  retainer,  a  parol  employment  will 
suffice;  or  the  Jury  may  infer  a  retainer  from  acts  of  the  client, 
in  the  progress  of  the  suit,  amounting  to  a  recognition  of  the 
attorney,  or  from  his  undertaking  to  pay  for  the  services. ^^  If 
the  services  were  rendered  as  attorney  of  another  person  than 
the  defendant,  facts  showing  the  defendant's  liability  therefor 
mnst  be  alleged.'*^  A  complaint  for  money  expended  and 
services  performed  should  state,  for  the  use  and  benefit  of  de- 
fendant, and  at  his  instance  and  request.  So  in  regard  to  per- 
formance of  labor.^^  So  a  complaint  which  avers  substantially 
that  the  rlefendant  Avas,  at  a  certain  time,  indebted  to  the  plain- 
tiff in  a  certain  sum.  for  professional  services  rciuh'red  at  the 

to  refovpr  a  spe(\ifiod  smn  nn  nrnonnt  of  work  done  and  labor  per- 
formed, and  on  aoronnt  of  jroods,  waros,  and  nierrhandise  sold  and 
delivered.    Soo  Farwell  v.  "Vfni-rav.  KM  Cal.    tn}. 

I*".  Ilotclikiss  V.  I^eroy.  f)  .Toliiis.  112:  P.nrirliMrt  v.  (^Jardnor,  P.  Bar1>. 
CA. 

47  TTarpcr  v.  Williamson,  1  MrCord.  l."r.:  Owen  v.  Ord.  ?,  Car.  ^^l- 
P.  ?A^\  Wiptrins  v.  Peppin.  ?,  Bear.  .''.40;  see,  also,  Allen  v.  Bane, 
4  id.  404. 

4«Merritt  v.  Millard.  .".  P.osw.  (M.".. 

■40  ITupnot  v.  Owen,  1  Nov.  ACA. 

72 


§  «>10 


FOKMS    OK    lOMl'L.VINTS.  570 


bpot'ial  instance  and  request  oi"  the  defendant,  is  sufficient,  with- 
out statin«;-  in  terms  tlie  value  of  the  services,  or  that  the  defend- 
ant promised  to  pay.'^*^ 

§  916.   Measure  of  damages  —  contingent  fee.       To     ascertain 
what  may  be  a  reasonable  compensation  for  services  rendered 
by  an  attorney,  the  amount  involved  and  the  character  of  the 
l)Usinoss  transacted  by  him  must  be  taken  into  account,  and  the 
time  employed;  not  the  time  inimediately  devoted  to  the  busi- 
ness alone,  but  the  time  which  he  nnist  lose  from  other  businesa 
in  attending  to  it."     In  addition  to  these,  the  jury  should  con- 
sider the  character  of  the  litigation  in  which  the  services  were 
rendered;  the  novelty,  difficulty,  and  importance  of  the  questions 
involved;  the  value  of  the  rights  or  property  in  controversy;  the 
attorney's  position  in  the  ease  as  leading  or  assistant  counsel, 
and  the  degree  of  responsibility  resting  upon  him;  and  the  fact, 
if  it  be  a  fact,  that  compensation  was  wh,olly  contingent  upon 
success.^'^     If  the  services  were  so  contingent  the  question  when 
such  success  was  obtained  is  a  question  of  law.^^     And  an  in- 
struction in  a  suit  on  a  quantum  meruit,  to  recover  counsel  fees, 
that  "  if  plaintiffs'  foe  was  to  be  contingent  on  success,  and 
defendant  settled  the  suit  without  plaintiffs'  consent,  plaintiffs 
could  recover  what  their  services  were  worth,"  does  not  incor- 
rectly state  the  law.^'*     And  an  instruction  to  the  jury  in  a  suit 

50Wilkins  v.  Stidser,  22  Cal.  232;  SP,  Am.  Dec.  CA.  Sfee  further, 
as  to  sufficiency  of  complaint  in  action  to  recover  for  lefral  services, 
Ryors  v.  Prior,  31  Ma  App.  .1.').5;  Burns  v.  Cushing,  96  Cal.  ^09; 
Foltz  v.  Cogswell,  SO  Cal.  542.  Immaterial  variance.  Carter  v. 
Baldwin,  9.5  Cal.  47.5. 

•■^1  Quint  v.  Ophir  S.  M.  Co..  4  Nev.  304. 

.^2  Leitensdorfer  v.  King.  3  West  Coast  Rep.  13.5. 

B3Id. 

M  Quint  V.  Ophir  S.  M.  Co..  4  Nev.  304.  Under  a  complaint  al- 
lejiinji  an  imconditional  agreement  to  pay  a  certain  sum  of  money 
for  tlie  plaintiff's  services  as  an  attorney,  and  that  the  services 
were  reasonably  worth  such  sum.  evidence  of  an  agreement  to  pay 
tliat  amount  on  a  contingency  and  the  happening  of  the  contingency 
is  inadmissible,  as  is  also  evidence  as  to  the  reasonableness  of  the 
contingent  agreement.  Owen  v.  Meade,  104  Cal.  179.  Complaint  by 
physician  — A  paragraph  of  complaint  by  a  physician  to  recover 
for  professional  seiwices  and  medicines  furnished,  which  alleges  a 
jironiise  by  the  defendant  to  pay  for  the  services  and  medicines, 
but  fails  to  aver  a  breach  of  the  promise,  is  bad.  and  subject  to 
a  demurrer.  Brickey  v.  Irwin.  122  Tnd.  .51.  But  such  complaint, 
containing  the  other  necessary  averments,  is  not  bad  for  a  failure 


571  SEKVICES,    WORK,    AND    LABOR.  §§  917,  918 

to  recover  counsel  fees,  that  "  if  plaiutiffs  were  employed  by 
defendant  to  come  from  San  Francisco  to  Virginia  City,  or  from 
San  Francisco  to  Aurora,  and  there  was  no  special  agreement 
as  to  the  amount  to  be  paid,  they  can  only  recover  the  value 
of  the  services  rendered  at  the  place  where  they  were  rendered, 
With  the  addition  of  reasonable  traveling  expenses;  and  if  the 
traveling  expenses  were  paid  by  defendant,  then  they  can  not 
be  recovered  by  plaintiffs,"  was  held  clearly  erroneous,  and 
properly  refused.^ 

§  917.  For    services   and    materials,   at   a    reasonable    price. 
Form  No.  231. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,  18..,   at 

,  he  built  a  house  known  as  jSTo , 

street,  in  said  city,  and  furnished  the  materials  therefor,  for  tlie 
defendant,  at  his  request. 

II.  That  the  said  work  and  materials  were  reasonably  worth 
dollars. 

III.  That  the  defendant  has  not  paid  the  same. 

[Demand  of  Judgment.] 

§   918.   By  advertising  agents,  for  services  and  disbursements. 
Form  No.  232. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  between  the   day  of  ,  18.  ., 

and  the day  of ,  18 .  . ,  at > 

the  plaintiff  rendered  services  to  the  defendant,  at  his  request, 
in  causing  the  defendant's  advertisements  of  his  business  to  be 
inserter!  in  the  following  named  newspapers  and  periodicals 
[names  of  newspapers] . 

IT.  That  the  plaintiff  pair!  out  at  the  request  of  the  rlefendant, 
for  such  insertions  for  the  use  of  the  flcfonclant,  and  at  his  re- 
quest  flollars. 

TIT.  That  the  deff-nrlant  promiscfl  to  pay  said  amount,  together 
with  a  reasonnblo  sum  for  snid  sorvioos. 

to  allpce  that  tlie  nifdifiin^s  wf>ro  fnniisliPd.   if  it  slinws  that  the 
sorvioos  woro  rpntlererl.    A   romplalnt   ontitliiiff  a  plaintiff  to  part 
of  thp  rrlipf  sonelit.  if  "r'^f^  asainst  a  donmrrpr.    Id. 
W  Quint  V.  Ophir  S.  :\r    To.,  4  Xev.  ?A\. 


&§'Jli)-i'v'L  FORMS    OK    COM  I' 1>A1  NTS.  573 

1\'.  That,  t^aid  sorviees  were  roasouably  worth 

dollars. 

A'.  That  the  dercndant  has  not  paid  the  same,  nor  any  part 

thereof. 

[Demand  of  Judgment.] 

§   919,   By  publisher  and  proprietor  for  advertising. 

Form  No.  233. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  plaintill's,  at  the  times  hereinafter  mentioned,  were 
publishers  and  proprietors  of  the  daily  newspaper  known  as  the 

*'  Mountain   Avalanche,"   published   at    ,   in   the 

county  of ,  in  this  state. 

II.  That  between  the  day  of ,  18. ., 

and  the day  of ,  18 . . ,  the  plaintiff  pub- 
lished   insertions  in  the  said  newspaper  of  the  ad- 
vertisements of  the  defendant  at  his  request. 

III.  That  such  services  and  publication  were  reasonably  worth 
dollars. 

IV.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

S  920.   For  stabling  horses. 

Form  No.  234. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That,  at  the  request  of  the  defendant,  he  provided  for, 

kept,  and  fed  a  horse  of  the  defendant,  from  the day 

of ,  18 .  , ,  to.  the day  of , 

18.. 

II.  That  such  keeping  find  finding  of  said  horse  was  reason- 
ably worth dollars. 

in.  That  he  has  not  paid,  the  same,  nor  any  part  thereof. 
[Demand  of  Judgment.] 

§  921.   Special  contract,  completely- filled. 
Form  No.   235. 
[Title.] 
The  plaintiff  complains,  and.  alleges: 

I.  That  on  the    day  of   ,   18 .  . ,   at 

,  the  defendant  made  his  agreement  in  writing 


573  SERVICES,    WOKK,    AND   LABOR.  §§  933-02-i 

under  his  hand  and  seal,  of  which  tlie  following  is  a  copy  [copy 
of  agreement  J. 

II.  That  the  plaintiff  has  duly  performed  all  the  conditions 
thereof  on  his  part. 

III.  That  on  the   day  of   ,  18. .,  at 

,  the  plaintiff  demanded  of  the  defendant  payment 

of  the  sum  of dollars,  in  said  contract  mentioned. 

IV.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  922.  Partnership.  Where  partners  employed  plaintiff  on 
condition  that  a  certain  portion  of  his  wages  should  be  retained 
till  a  certain  sum  had  accumulated,  when  plaintiff  should  be- 
come a  partner,  and  during  the  accumulation  the  firm  dis- 
solved, the  plaintiff  may  sue  on  the  special  contract  or  for  work 
and  labor.^^ 

§  923.  Performance.  If  the  plaintiff  undertakes  to  aver  per- 
formance by  setting  out  the  facts  showing  performance,  he  may 
be  held  to  aver  them  with  certainty .^'^ 

§  924.  The  same,  where  the  contract  was  fulfilled  by  an  as- 
signee. 

Form  No.  2^6. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day   of    ,   18..,   at 

,  defendants,  in  consideration  of   , 

executed  and  delivered  in  writing,  under  their  hands  and  seals, 
a  contract  with  one  A.  B.,  of  which  tbe  following  is  a  copy,  and 
marked  "Exhibit  A." 

II.  That  thereafter,  and  before  the day  of , 

eaid  A.  B.  duly  assigned  the  same,  and  all  his  rights  under  it, 
to  the  plaintiff. 

III.  That  up  to  the  time  of  the  assignment,  the  assignor  hnd 
duly  performed  all  the  conditions  of  the  contract  on  his  part, 
and  that  since  said  assipmuont,  tlio  plaintiff  duly  performed  all 
the  conditions  thereof  on  his  part. 

IV.  That  on  the   day  of   ,  18 .  .,  at 

•"'"AflninR  V.   ruffh.   7   Tal.   ir.O. 

B7  iintfli  V.  Peof,  2"  Barb.  r,7r,.  As  to  avprment  nf  performance 
on  a  moflifu'd  contract,  see  .'^niith  v.  lirown,  17  Barb.  431. 


§  925  FOKMS   OF   COMI'LAINTS.  57-4 

,  the  plaiiitiir  dciiiaiuk'il  oi  the  defendant  payment 

of  the  sum  of tlollars,  in  said  contract  mentioned. 

V.  That  lie  has  not  paid  the  same. 

[DeiMais'd  of  Judgment,] 
[Annex  copy  of  contract,  marked  "  Exhibit  A."] 

§  925.  Performance,  how  alleged.  One  suing  on  a  contract 
assigned  to  him  may  allege  performance  by  saying  that  up  to 
the  time  of  the  assignment  the  assignor  had  performed,  on  his 
part,  all  the  covenants  of  the  contract,  and  that  afterwards  the 
plaintiff  fully  performed  the  conditions  imposed  by  the  con- 
tract on  the  assignor.'^^  Where  plaintiff  has  bound  himself  to 
procure  certain  acts  to  be  done  by  third  parties,  adding  that 
those  on  whose  behalf  he  acted  have  also  performed,  is  unneces- 
sary.^^ 

cscal.  Steam  Nav.  Co.  v.  Wright,  6  Cal.  258. 

59  Rowland  v.  Plialen,  1  Bosw.  43.  For  cases  of  services  rendered 
to  relatives,  see  Thornton  v.  Gi-ange,  G6  Barb.  507;  and  Neal  v. 
Gilmore,  79  Penn.  St.  421;  Zimmerman  v.  Zimmerman,  129  id.  229; 
15  Am.  St.  Rep.  720;  Lynn  v.  Smitli,  35  Hun,  275:  Halliday  v. 
Miller,  29  W.  Va.  424;  6  Am.  St.  Rep.  653. 


CHAPTEK  XIII. 

FOE  USE   AXD   OCCUPATION. 

J   926.   On  an  express  contract. 

Form   No.  237. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18.  .,  at 

^  the  plaintiff  rented  to  the  defendant,  and  the 

defendant  hired  from  the  plaintiff   [the  office  No 

street],  and  agreed  to  pay  therefor  the  monthly 

rent  of dollars,  payable  [monthly],  on  the  first 

day  of  each  [month]. 

II.  That  defendant  occupied  the  said  premises  from  the 
day  of ,  18.  .,  to  the  day  of 

,18.. 

III.  That  defendant  has  not  paid dollars,  being 

tlie  [part  of  said]  rent  due  on  the day  of , 

18.. 

[Demand  of  Judgment.] 

5  927.  Summary  proceedings  to  recover  possession.  It  seems 
lliat  wliere  a  landlord  elects  to  terminate  a  lease  for  non- 
payment of  rent,  and  commences  summary  proceedings  to  re- 
cover possession,  he  is  not  entitled  to  recover  for  use  and 
occupation  from  the  time  he  terminated  the  lease  until  he 
obtained  possession.^ 

?  928.  Occupancy.  Actual  continued  occupancy  is  not  neces- 
sary to  be  shown.^ 

1  Powers  V.  Witty.  42  ITow.  Pr.  .^'>2;  S.  C.  4  Daly.  .^».')2.  The 
action  for  use  and  orcupation  can  not  In?  maintained  unless  tho 
relation  of  landlord  and  tenant  has  exist(Ml.  ITonnossey  v.  Iloajj:. 
1<;  Col.  4a>:  Colt  V.  Planer,  T>\  N.  Y.  <Vt7;  Preston  v.  Ilawley,  101 
id.  .^SO;  rjrady  v.  Ibar-h,  M  Ala.  1.'52. 

2  Little  V.  ^[artin,  ?,  Wend.  220;  20  Am.  Dec.  n.SS;  Westlake  v. 
De  Graw,  25  Wend.  6G9;  Iloffnian  v.  Delihanty,  13  .\bb.  Pr.  388. 


§§  9:21)- 932  fohms  of  comi'laijsts.  676 

§  929.   For  reut  reserved  in  a  lease. 
I'onn   No.  238. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That   on  the    day   of    ,   18..,   at 

,  the  defendant  entered  into  a  covenant  with  plain- 
tiff, under  their  hands  and  seals,  a  copy  of  which  is  annexed 
hereto,  and  made  a  part  of  this  complaint,  marked  "  Exhibit  A  " 
[or  state  the  substance  of  the  agreement]. 

II.  That  the  defendant  has  not  paid  the  rent  for  the  month 
ending  on  the  day  of  ,  18.  .,  amount- 
ing to dollars. 

[Demand  of  Judgment.] 
[Annex  copy  of  lease,  marked  "  Exhibit  A."] 

§  930,  Parties.  Where  parties  own  tracts  in  severalty,  they 
can  not  join  in  an  action  to  recover  for  the  use  and  occupation 
of  the  entire  tract.^ 

§  931.  Designation  of  premises.  The  premises  may  be  desig- 
nated by  a  simple  reference  to  the  lease,  as  in  the  above  form.* 

§  932.  Forfeiture.  The  tenant  can  not  insist  that  his  own 
act  amounted  to  a  forfeiture;  if  he  could,  the  consequence 
would  be  that  in  every  instance  of  an  action  of  covenant  for 
rent  brought  on  a  lease  containing  a  provision  that  it  should  be 
void  on  the  nonperformance  of  the  covenants,  the  landlord 
would  be  defeated  by  a  tenant  showing  his  own  default  at  a 
prior  period,  which  made  the  lease  void.''  At  common  law  there 
was  no  forfeiture  of  an  estate  for  years  for  the  nonpayment  of 
rent.^  By  failure  to  pay  rent  when  demanded,  the  contract 
under  the  lease  is  determined,  and  possession  from  that  time  is 

3Tennant  v.  Pfister,  51  Cal.  511.  Ono  tenant  in  common  can  not 
alone  maintain  an  action  for  use  and  occupation.  Dorsett  v.  Gray, 
98  Inrl.  27.'?. 

4  Dundass  v.  T.ord  Wymouth,  Cbwp.  665;  Van  Rensselaer  v. 
Bradley.  ?,  Den.  135;  45  Am.  Dec.  451.  Where  there  are  no  writings, 
it  is  sufficient  if  the  premises  can  be  ascertained  and  located  from 
the  allegations  of  the  complaint.  Kiernan  v.  Teri*y,  26  Orect.  494; 
see  Gnstaveson  v.  Otis.  27  N.  Y.  Supp.  280. 

•''•  Doo  d.  Bryan  v.  Banlcs,  4  B.  &  Aid.  409:  Rtnyvesant  v.  Davis, 
9  Paitre  Ch.  427:  Camfiold  v.  Westcott,  5  Cow.  270. 

echipman  v.  Emeric,  3  Cal.  27.3. 


577  USE  AXD  OCCUPATION.  §§  933-935 

tortious/  But  the  mere  failure  to  pay  will  not  make  a  forfeit- 
ure; a  formal  demand  on  the  day  it  becomes  due  is  necessary.® 
Where  the  record  shows  no  demand  of  rent^  there  can  be  no 
forfeiture.^ 

§  933.  Liability  of  tenant.  The  tenant  is  liable  to  payment 
until  he  has  restored  full  and  complete  possession  to  the  land- 
lord, and  his  liability  to  pay  the  rent  is  not  discharged  by  an 
eviction,  unless  under  a  title  superior  to  the  landlord's,  or  by 
some  agency  of  the  landlord's.^** 

§  934.  Term  of  lease.  If  the  tenant  takes  a  receipt  from 
his  landlord,  specifying  the  amount  of  rent  paid,  and  the  length 
of  the  lorm,  to  commence  on  the  expiration  of  the  lease,  the  new 
term  will  be  for  the  time  specified  in  the  receipt.  No  new  ten- 
ancy by  implication  arises  in  such  cases.^^  Where  a  landlord 
served  upon  his  tenant,  who  was  occupying  under  him  certain 
premises,  under  a  rent  of  two  hundred  and  fifty  dollars  per 
month,  a  notice  to  quit,  but  before  the  time  at  which,  by  the 
effect  of  the  notice,  the  tenancy  would  have  tcnninated,  the 
tenant,  through  a  third  person,  proposed  to  the  landlord  to 
( ontinue  his  occupancy,  at  a  rent  of  three  hundred  dollai's,  witli 
which  proposal  the  landlord  expressed  himself  satisfied,  but  did 
not  in  terms  notify  the  tenant  of  his  acceptance  of  it,  and  he 
continued  to  occupy  the  premises,  it  was  held,  in  an  action  by 
the  landlord  for  rent  at  the  rate  of  three  hundred  dollars  per 
month,  that  it  must  be  inferred  that  the  subsequent  occupation 
of  the  tenant  was  with  the  consent  of  the  landlord,  on  the 
basis  of  the  proposal,  rather  than  as  a  trespasser,  and  that 
plaintiff  was  entitled  to  recover.^^ 

?  935.   For  deficiency  after  a  re-entry. 
For)n  No.   239. 

[Tttt.K.] 

The  ])laintiff  complains,  and  alleges: 

T.  That  by  a  lease  made  between  the  plaintiff  and  iho  de- 
fendant,   on    the    dny    of    18...    at 

the  defendant  rented  fi'om  the  plniniiff,  and  the 

■TTront-  V.  I.i(l<lpl1.  10  Cal.  .".02. 
Rna.skill  V.  MYniner,  3  Cal.  ?<?,\. 
nriiii'rnan   v.   EniPrif.  ?,  Pal.   21?,. 
in  Rfliiinnc  v.  nolnips.  2P,  Cn\.  227. 

11  r.lDinonborc  v.  Myrra.  ?.2  Pal.  flf.;  HI    Arn.  Dec.   F.fiO. 
isnoff  V.  ■RaiiTTi.  21   Pal.  120. 
Vol.  T— 7.3 


§§030-038  FOKMS   OF   COMI'IAINTS.  578 

plaintiir  dcniisiHl  ami  \vn>vd  to  the  (U'lViidaiit,  the  premises 
therein  iiientioued,  ut  the  moiUiily  rent  of  dol- 
lars, gold  coin,  payable  monthly  in  advance,  on  the   

day  of  each  and  every  month,  and  tliat  said  indenture  contained 
a  covenant  of  wliich  the  following  is  a  copy  [copy  covenant]. 

II.  The  defendant,  contrary  to  his  covenant  [state  the  breachj, 
and  that  the  plaintilT  for  that  cause  re-entered  the  premises,  and 
took  possession  thereof  by  virtue  of  the  authority  given  in  said 
lease,  and  as  agent  of  the  defendant,  and  not  otherwise,  and  that 
he  made  diligent  efforts  to  relet  the  premises  for  the  defendant, 
but  was  unable  to  do  so. 

III.  That  thereby  the  plaintiff  lost  the  sum  of 

dollars  for  rent  for  the  months  of and 

[Demand  of  Judgment.] 

§  936.  Surrender  of  premises.  One  of  the  most  important 
duties  of  the  tenant  is  to  peaceably  suiTcnder  the  premises  as 
soon  as  the  tenancy  has  expired. ^^  The  surrender  of  a  lease- 
hold estate  is  the  merger  of  the  fee,  hut  this  will  not  defeat  the 
rights  of  a  third  party  intervening  before  the  merger  took 
effect.^* 

§  937.  Waiver  of  forfeiture.  The  subsequent  receipt  of  the 
rent  by  the  lessor  is  a  waiver  of  the  forfeiture  unless  the  cove- 
nant has  a  continuing  covenant,  or  the  lessor  was  ignorant  of 
the  breach.^'  The  forfeiture  of  a  lease  is  not  waived  by  the 
lessor  allowing  the  tenant  to  hold  over,  without  notice  to  quit, 
unless  the  circumstances  show  a  new  term  created. ^^ 

§  938.  Against   assignee  of  lessee. 

Form  No.  240. 
[TtTLE.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of  ,  18. .,  by  a 

lease  made  between  this  plaintiff  and  one  A.  B.,  under  the  band 
and  seal  of  said  A.  B.  [of  which  a  copy  is  annexed],  this  plain- 
tiff leased  to  said  A.  B.,  and  said  A.  B.  rented  from  the  plaintiff, 
certain  lands,  to  have  and  to  bold  to  said  A.  B.  and  bis  assigns, 
from  the  .  . ; day  of ,  18.  .,  for  the  term 

isSfhillinc:  v.  ITolmes.  2.'?  Cal.  227. 
ucaskill  V.  Trainer.  3  Cal.  334. 
i^MfOlynn  V.  Moore.  2.".  Cal.  384. 
18  Caldem-ood  v.  Brooks,  28  Cal.  151. 


579  USE    AND    OCCUPATION.  §§  939    9il 

of ,  then  next  ensuing,  for  the  [monthly]  rent  of 

dollars,  payable  to  this  plaintitf  on  the    [state 

days  of  payment],  which  rent  said  A.  B.  did  thereby,  for  him- 
self and  his  assigns,  covenant  to  pay  to  the  plaintiff  accordingly. 

II.  That  thereafter,  and  during  said  term,  to-wit,  on  the 

day  of   ,  18.  .,   [naming  a  day  before 

breach],  all  the  estate  and  interest  of  said  A.  B.  in  said  term, 
by  an  assignment  then  by  him  made,  became  vested  in  the 
defendant,  who  thereupon  entered  into  possession  of  the  demised 
premises. 

III.  That  during  the  time  the  defendant  was  so  possessed  of 

the  premises,  to-wit,  on  the    day  of   , 

18.  .,  the  sum  of dollars  of  said  rent,  for  the 

month  ending  on  that  day  [or  otherwise],  Ijecame  due  to  the 
plaintiff  from  the  defendant. 

IV.  That  he  has  not  paid  the  same  or  any  part  thereof. 

[Demand  of  Judgment.] 

§  939.  Assignment.  In  such  cases  the  assignment  need  not 
be  more  s])ecifically  alleged. ^'^ 

§  940.  Liability.  The  liability  of  an  assignee  is  confined  to 
the  term  during  which  he  holds  the  premises,  by  himself,  or  his 
immediate  tenants.'^  The  assignee  of  a  lease  may  discharge 
himself  from  all  liability  under  the  covenants  of  a  lease,  by 
assigning  over;  and  the  assignment  over  may  be  to  a  beggar,  a 
feme  covert,  or  a  person  on  the  eve  of  quitting  the  countn^ 
forever,  providing  the  assignment  be  executed  before  his  de- 
parture, and  even  though  a  premium  is  given  as  an  inducement 
to  accept  the  transfer.^® 

§  941.  Nonpayment.  It  is  sufficient  to  aver  that  the  defend- 
ant has  not  paid  the  samc^*^ 

17  Van  Rensselaer  v.  Bradley,  .3  Don.  ^.^";  A'*  Am.  Deo.  4.51; 
Norton  v.  Vultpe.  1  Hall,  427. 

iSAstor  V.  L'Amoronx,  4  Sandf.  r>24.  As  to  the  liability  of  one 
In  possession  wifumt  a  valid  as,si;rninent,  see  Carter  v.  Ilammett, 
12  Bart).   2.>:?;   Kyors-s   v.   F.-irwell.  0   id.   m.'>. 

lO.Tolinson  v.  Shorman,  1.'  Cal.  2.S7;  70  Am.  Deo.  481;  citing  2 
Piatt  on  Leasos,  410. 

20Dnl»ols,  Ex'rs  of,  v.  Vun  Onlcn,  0  .Tolins.  10.%;  Van  Rensselaer 
V.  Bradley,  3  Den.  13.5;  45  Am.  Dec.  451;  Holsman  v.  De  Gray, 
6  Abb.  Pr.  79. 


§§  O-i'-i-O-Al  FORMS    OF    COMl'LAIMTS.  680 

S  942.   Grantee  of  reversion  against  lessee. 

J'onti   Xo.   ^-11. 
[TlTLL.J 

The  plaiutilV  e'()in])laiiis,  and  alleges: 

I.  Thai  one  A.  J),  was  the  owner  in  I'ee  of  certain  premises 

[describe  them  J,  and  on  the   day  of   , 

18..,  by  a  lease  made  between  him  and  the  defendant,  under 
the  hand  and  seal  of  the  defendant,  a  copy  of  which  is  annexed 
and  made  a  part  of  this  complaint,  marked  "  Exhibit  A,"  lie 

leased  to  the  defendant  said  premises,  from  the day  of 

,  18.  .,  for  the  term  of   then  next 

ensuing,  for  the    [monthly  or  yearly]    rent  of    

dollars,  payable  to  said  A.  B.,  his  heirs  and  assigns,  on  the 
[state  days  of  payment],  which  rent  the  defendant  did  thereby 
covenant  to  pay  to  said  A.  B.,  his  heirs  and  assigns,  accordingly. 

II.  That  thereafter,  on  the   day  of   , 

18. .,  at ,  said  A.  B.,  by  his  deed,  nnder  his  hand 

and  seal,  sold  and  conveyed  to  this  plaintiff  the  demised  premises. 

III.  That  notice  thereof  was  given  to  this  defendant. 

IV.  That  thereafter,  to- wit,  on  the day  of , 

18.  .,  the  snm  of   dollars  of  said   rent,  for  the 

quarter  ending  on  that  day  [or  otherwise],  became  due  to  the 
plaintiff  from  the  defendant. 

V.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

8  943.  Allegation  of  assignment. 

Form  No.   242. 

That  on  the day  of ,  18.  .,  at , 

the  said  A.  B.  assigned  to  the  plaintiff  said  lease  and  covenants, 
and  all  his  right  to  the  rent  therein  secured. 

§  944.   Allegation  by  heir  of  reversioner. 
Form  No.   243. 

That  the  said  A.  B.  was  on  the day  of , 

18.  .,  seised  of  the  reversion  in  said  demised  premises.     That 

afterwards,  and  during  the  said  term,  on  the day  of 

,  18.  .,  A.  B.  died  so  seised;  whereupon  the  said 

reversion  then  dosr-ended  to  the  plaintiff  as  liis  son  and  heir,  and 
thereby  plaintiff'  then  became  seised  thereof  in  fee. 


581  USE   AND    OCCUPATION".  §§  945,  946 

§  945.  Assignments.  In  these  actions,  the  complaint  should 
speciUcally  allege  the  assignments  to  the  grantee,  and  the  better 
plan  is  to  annex  a  copy  or  copies  (if  there  be  several)  to  the  com- 
plaint.^^ It  should  be  alleged  distinctly  that  there  was  a  lease, 
that  the  defendant  was  lessee,  and  is  sued  for  the  rent.^- 

§  946.   Assignee  of  devisee  against  assignee  of  lessee. 
Form  iVo.   244. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  one  A.  B.  was  in  his  lifetime  the  owner  in  fee  of 
certain  premises  [describe  them],  and  that  on  the  .      •  .  . . .  day 

of ,  18.  .,  he  leased  the  same  to  one  C.  D.,  by  his 

lease  dated  on  that  day,  a  copy  of  which  is  hereto  annexed  as 
part  of  this  complaint,  and  marked  "  Exhibit  A." 

II.  That  by  virtue  tlicreof  the  said  C.  D.  entered  into  the 
possession  of  the  demised  premises. 

III.  That  on  the  day  of   ,  IS.  .,  at 

,  the  said  C.  D.  assigned  all  his  right,  title,  and 

interest  in  the  demised  premises  to  the  defendant. 

IV.  That  on  the   day  of   ,  18.  .,  at 

the  said  A.  B.  died. 

Y.  That  ])y  his  last  will  and  testament,  which  was  proved 
and  admitted  to  probate  before  the  Probate  Court  of  the  county 

of in  this  state,  on  the day  of , 

18.  .,  the  said  A.  B.  devised  the  reversion  and  rent  to  one  E.  F. 

VI.  That  on  the  day  of   ,  18. .,  at 

,  the  said  E.  F.  assigned  the  said  reversion  and 

rent  to  the  plaintiff. 

VTT.  That  after  the  said  E.  F.  so  assigned  the  said  reversion 
and  rent  to  the  plaintiff,  the  sum  of dollars  ac- 
crued as  the  rent  of  said  premises  for  the  [month  or  quarter] 

endinff  on  the day  of ,  18.  .,  under  and 

according  to  the  terms  of  said  lonso. 

VTTT.  That  the  defendant  has  noi  paid  the  same. 
[Demand  of  Judgment.] 
[Annex  copy  of  Irnso.  marked  "Exhibit  A."]23 

21  P.earrlslpy  v.  Krticht.  4  Vt.  471. 

22Wi]lanl  V.  Tillman.  2  nill,  274. 

23  It-  is  not-  oxpectofi  that  this  fonu  will  b<^  of  spccl.n1  nsp.  to  the 
profosslon  in  ralifomia,  bnt  instnnff"?  may  present  tliomselves 
•where  It  may  be  of  utility,  and  it  is,  thorefore,  Inserted. 


§§  <)-17-i'0l  I'OKMS   OF    COill'LAlMTS.  682 

§  947.  Executor  and  devisee.  Oue  who  is  both  executor  and 
devisee  ol'  ihe  lessor  may  join  a  I'hiiiu  i'or  rent  subsequent  to  the 
decease  of  testator  wiili  u  claim  for  damages  lor  breach  of 
covenant  resptvting  personal  property  embraeed  in  the  lease.-* 

§  948.  For  use  and  occupation  of  pasture. 

Form  No.  243. 

[Title.] 
Tlie  plaintiif  complains,  and  alleges: 

I.  That  on  the    day   of    ,   18.  .,  at 

,  the  defendant  hired  from  the  plaintiff,  and  the 

plaintitl'  rented  to  the  defendant,  the  vacant  lot  of  land  [de- 
scribe it],  at  the  rent  of dollars  per  month,  pay- 
able in  gold  coin,  monthly  [or  otherwise],  on  the  first  day  of 
each  month. 

II.  That  defendant  occupied  said  lot  by  permission  of  the 
plaintiff,   and   as   his   tenant,   under  said   agreement,   for   the 

grazing  of  his  sheep    [or  cattle],  from  the   day  of 

,  18 .  . ,  to  the   day  of   , 

18.. 

III.  That  the  defendant  has  not  paid  the  rent  for  the  months 
of and 

[Demand  of  Judgment.] 

§  949.  Request  and  permission.  The  allegation  that  the  use 
and  occupation  of  the  lot  in  question  was  at  the  request  of  de- 
fendant, and  by  the  permissio-n  of  plaintiff,  is  the  allegation,  of 
a  contract,  which  the  plaintiff  is  bound  to  establish  to  enable 
hiro  to  succeed.^ 

§  950.  Terms  stated.  If  a  plaintiff  in  an  action  on  a  contract 
for  the  pasturage  of  cattle  at  a  fixed  price,  does  not  insert  in 
his  complaint  any  quantum  valcbat  count,  judgment  must  be  for 
the  stipulated  sum,  or  for  the  defendant.^^ 

§  951.   For  use  and  occupation  —  implied  contract. 

Form  No.   246. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  defendant  occupied  the  [stable  or  dwelling-house.  TnTo. 
47  street] ,  by  permission  of  the  plaintiff,  from 

24  Armstronqr  v.  TTall.  17  Hott.  Pr.  76. 
2B  Sampson  v.  Rrhapffpr,  3  Cal.  201. 
28  Seale  v.  Emerson,  25  Cal.  293. 


583  USE  AXD  OCCUPATION.  §§  952,  953 

the day  of   ,  18 .  . ,  until  the   

day  of ,  18. . 

II.  That  the  use  of  the  said  premises  for  the  said  period  was 
reasonably  worth dollars. 

III.  That  defendant  has  not   paid   the  same,  nor  any  part 

thereof. 

[Demand  of  Judgment.] 

§  952.  When  action  lies.  No  action  for  use  and  occupation 
vill  lie  where  possession  is  adverse  and  tortious,  for  there  can 
be  no  implication  of  a  contract.^^  The  right  to  recover  for  use 
and  occupation  is  founded  alone  upon  contract.-^  Or  an  agree- 
ment by  which  the  tenant,  with  permission  of  the  owner,  occu- 
pied the  premises.29  But  in  certain  cases  a  contract  may  be 
implied.^"  And  in  an  action  for  use  and  occupation  upon  an 
undertaking  on  appeal,  the  defendants  are  estopped  from 
denying  that  the  defendant  in  the  judgment  was  in  possession  at 
the  time  he  took  his  appeal  and  gave  the  undertaking.^^  If  the 
occupation  was  contrary  to  the  owner's  will,  his  action  must  be 
for  damages.32  jf  ^hQ  complaint  shows  that  the  occupation  was 
a  trespass,  it  is  of  course  bad  on  demurrer.-''^ 

§953.  Essential  allegations  —  title  —  indebtedness.  The  plain- 
tiff need  not  set  forth  an  implied  demise,  but  may  declare  for 
use  and  occupation,  and  recover  on  the  special  facts  shown,^* 
No  tenancy  can  be  implied  under  a  party  who  has  not  the  legal 
estate.^°     But  it  would  appear  that  one  occupying  and  paying 

27  Sampson  v.  Sliaeffcr,  ?,  Cal.  lOa;  Ramirez  v.  Murray,  .5  Cal.  222; 
and  see  Hurley  v.  I>anioreaux,  29  Minn.  138;  Stringfellow  v.  Curry. 
7G  Ala.  394. 

2R  O'Connor  v.  Corbelt,  3  Cal.  370;  Espy  v.  Fanton.  H  Ores.  423; 
I.ankford  v.  Green.  r^2  Ala.  103. 

29  Atkins  v.  ITumi)lirey  et  ah-,  ">2  Ens.  Com.  L.  0!'.3;  Sclby  v. 
Browne,  7  Q.  B.  (i20;  03  Encr.  C^m.  E.  020. 

sooscrood  v.  Dowey.  13  .Tohns.  2^0;  AlM>el  v.  Radoliff,  id.  297; 
7  Am.  T>ec-.  377;  Porter  v.  Bleiler,  17  Barb.  149;  Ryerss  v.  Farwell. 
9  id.  C,^^>. 

31  Murdock  v.  Brooks,  38  Cal.  .^►9r>. 

32Sndth  V.  Stewart,  0  .Tolins.  40;  .'.  Am.  Dec.  ISC;  Bancroft  v. 
Ward  well,  13  Johns.  489;  7  Am.  Dec  .39(!;  Hall  v.  Southmayd,  15 
Barb.  .32. 

asiinrd  v.  Miller,  2  Hilt.  ."40. 

34^rorns  V.  Niles,  12  .\l)i».  IV.  103:  Waters  v.  Clark,  22  How.  Pr. 
104. 

SCMorpcll  V.  Paul.  2  Man.  it   It.  3<i3. 


§  953a  KOUMS    OK    COMI'LAINTS.  584 

riMil  to  ;ii>  iiitpaivnl  lu-opiidor  as  his  laiullurd,  can  not,  when 
bucil,  allege  that  lie  liaa  only  llie  equitable  estate.'"'  An  aver- 
ment of  use  and  occupation  as  leuant  is  a  sullieieul  avernieut 
of  indebtedness.'"  The  plaintilV  must  show  tliat  the  del'endant 
used  and  occupied  the  premises  by  the  ])ermission  of  the  plain- 
titf.^'*  It  seems  that  in  this  action  })lainliir  need  not  aver  title, 
and  the  defendant  can  not  object  to  his  title.'''-' 

§  953a.  The  same  —  continued.  It  is  held  that  rent  reserved 
in  a  written  lease  under  seal  can  not  be  recovered  under  a  count 
in  assiiiiipsif  for  use  and  occupation.'**^  But  it  is  settled  other- 
wise in  Michigan."*^  Under  the  common  counts,  the  plaintifT: 
is  not  bound  to  prove  a  special  contract  in  order  to  recover  a 
reasonable  price  for  the  use  and  occupation  of  premises.^^  A 
complaint  in  an  action  for  use  and  occupation,  which  fails 
to  allege  any  facts  showing  that  the  relation  of  landlord  and 
tenant  subsisted  l)etwccn  the  plaintiff  and  defendant  at  the 
time  of  the  alleged  use  and  occupation,  or  any  part  thereof, 
fails  to  state  a  cause  of  action,  and  is  demurrable."*^  So  under 
a  tenancy  from  year  to  year,  where  action  is  brought  to  recover 
accrued  rent  before  the  expiration  of  the  year,  and  the  com- 
plaint does  not  allege  an  agreement  or  a  custom  from  which 
it  appears  that  the  rent  was  due  when  the  suit  was  ccfmmenced, 
the  complaint  is  insufficient,  since,  under  such  a  tenancy,  in  the 
absence  of  a  special  agreement  or  custom  to  the  contrary,  rent 
is  not  due  until  the  end  of  the  year."*^  An  objection  to  a  com- 
plaint for  rent  alleged  to  be  due  upon  an  indenture  of  lease, 
upon  the  ground  that  the  complaint  does  not  sufficiently  aver 
demand  and  nonpayment,  is  waived  by  failure  to  demur  especi- 
ally thereto,  and  can  not  be  urged  upon  general  demurrer.^^ 

3R  Dolby  V.  Tlos,  11  Ad.  &  E.  R35. 
ST-sValker  v.  Mauro,  18  Mo.  564. 

■•5S  Sampson  v.  Schaeflfer,  n  Cal.  100;  Hathaway  v.  Ryan,  S.!  id.  188; 
Dixon  v.  Ahern.  19  Nev.  422. 
sn  Vornam  v.  Smith,  l.'i  N.  Y.  329. 

40  Smiley  v.  McLansrlilin,  1.38  Mass.  363;  and  see  Preston  v. 
Ilawiey,  101  N.  Y.  .'-)86. 

41  Reoflier  v.  Dufiiold,  07  Mich.  423. 

42  .Taclcponville.  oto..  R.  R.  CO.  v.  Louisville,  etc..  R.  R.  Co.,  1^^0 
III.  480. 

43  Hurley  v.  Lamoreaux,  29  Minn.  138;  and  see  Savinprs  Ranli  v. 
Anil.  80  Mo.  100;  Henderson  v.  Detroit.  01  Mich.  378. 

44  Indianapolis,  etc.,  R.  R.  Co.  v.  First  Nat.  Banlj,  134  Tnd.  127. 
4"  Bliss  V.  Snoath,  103  Cal.  43. 


585  USE   AXD    OCLUPATIOJST.  §§  954-956 

And  the  failure  of  a  complaint,  in  an  action  for  rent  due  under 
a  written  lease,  to  allege  the  periormance,  or  an  excuse  for 
the  nonperformance,  of  the  covenants  of  the  lease  to  be  per- 
formed on  the  part  of  the  lessor,  if  error,  is  error  without  in- 
jury, where  the  covenants  are  set  up  in  a  counterclaim  and 
their  breach  therein  alleged,  and  the  case  is  tried  upon  the 
issues  thus  raised.'*'^  A  complaint  which  alleges  that  D.  (third 
person)  rented  a  store  to  the  defendant  at  his  request,  for  which 
the  defendant  promised  to  pay  the  plaintiff  the  reasonable 
value,  and  further  alleging  the  reasonable  value  and  nonpay- 
ment, states  a  cause  of  action.*''^ 

§  954.  Parties.  The  grantee  of  demised  premises,  on  the  re- 
version thereof,  is  the  proper  party  to  bring  suit  for  the  recovery 
of  rent  which  accrued  and  became  due  before,  and,  a  fortiori, 
after  the  conveyance  to  him.  After  such  conveyance  an  action 
by  the  grantor  for  rent  can  not  be  sustained.^*  Tenants  in 
common  may  Join  in  an  action  for  use  and  occupation  without 
showing  a  joint  demise.*^  So,  in  England,  an  infant  can  also 
maintain  this  action,  although  he  has  a  general  guardian.^'* 

I  955.  Separate  demands.  In  Xew  York,  in  an  action  for  use 
and  occupation,  demands  for  rent  which  accrued  in  the  life- 
time of  a  decedent,  and  for  rent  accruing  after  his  decease,  while 
the  tenancy  was  continued  by  the  executors  on  account  of  the 
estate,  are  properly  joined  as  one  cause  of  action,  against  the 
executors  as  such." 

§  956.  Tenant  at  will.  Tf  a  party  enter  upon  land  which  he 
has  contracted  to  purchase,  ■unth  the  consent  of  the  vendor,  and 
the  contract  falls  through  because  the  purchaser  fails  to  pay  as 
agreed,  the  vendor  may  treat  him  as  a  tenant  at  will,  and  mav 
bring  assumpsit  for  use  and  occupation,  or  it  seems  ho  may 

^'Jr.illospio  V.  ITajrans.  f)0  Tal.  no.  Iti-silance  of  sufficient  allocra- 
tion  of  an  impllerl  rontraft.     Soo  PJanlc  of  Sun  City  v.  Ne£f,  50  Kan. 

••T  Rrhnpider  v.  Wliite.  12  Orepr.  .^►0.*?. 
♦''Andorson  v.  Trendwoll.  1   Edm.  201. 
■•nPortrr  v.  Blrilor.  17  Barb.  140. 

.•w)  PortfT  V.  P.loilcr.  17  Harli.  140;  and  sco  Fifzmaurloo  v.  Waugh, 
?.  Dowl.  i^-  Tl.  27.T:  10  Enp.  Com.  Ta  R.  100. 
51  Puplsey  V.  Aiken,  11  N.  Y.  494. 

74 


§i^  il57-l)60  FORMS   OF   COMPLAINTS.  586 

uiuiutain  trespass.'*^  After  the  deterraiuation  of  a  tenancy  at  will 
by  notice,  assitiiil^sit  lor  use  and  oc'cu])ali(>n  lies  against  the 
tenant,  if  he  holds  over.^^ 

§  957.  Interest.  Interest  may  be  recovered  on  a  claim  for  use- 
and  occupation,  after  demand.""''* 

§  958.  Improvements.  A  defendant  who  entered  under  a 
bond  for  a  deed  from  the  plaintilt',  can  not  set  olf  his  improve- 
ments against  the  damages  for  use  and  occupation.^'^ 

§  959.   For  lodging  and  board. 

Fomi  No.  247. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  from  tlie day  of ,  18.  .,  un- 
til the day  of ,  18.  .,  defendant  occupied 

certain  rooms  in  the  house  [No.  54 street,  city  of 

J  by  permission  of  the  plaintiff,  and  was  fur- 
nished by  the  plaintiff,  at  his  request,  with  food,  attendance, 
and  other  necessaries. 

II.  That  in  consideration  thereof,  the  defendant  promised  to 

pay  [or  the  same  was  reasonably  worth]  the  sum  of 

dollars. 

III.  That  the  defendant  has  not  paid  the  same,  nor  any 
part  thereof. 

[Demand  of  Judgment.] 

I  960.   Allegation  for  lodging. 

Form  No.  248. 
That  the  defendant  occupied  rooms  in,  and  part  of  the  house 
of  the  plaintiff,  at   [and  if  furnished,  add,  to- 

52  Woodbury  v.  WoodbuiT,  47  N.  H.  11;  97  Am.  Dee.  561;  .Tones 
V.  Nathrop,  1  West  Coast  Rep.  279. 

M  lloer-sett  v.  Ellis,  17  Mich.  3.51;  3  Am.  I>aw  Rev.  7.57,  7.58. 
A  reooT(M-y  can  bo  had  in  an  action  for  use  and  occupation  whore 
tho  defendant  holds  over  after  the  expiration  of  his  term.  Coimty 
Commi.ssioners  v.  Brown,  2  Col.  App.  473. 

fi+Ten  Eyck  v.  Houshtalinfr,  12  How.  Pr.  523.  Where  the  de- 
fendant hol^s  under  color  of  title  adversely  to  the  plaintiff,  the 
true  measure  of  damajres  is  held  to  be  the  fair  rental  value  of  the 
premises,  together  with  interest  thereon  to  the  time  of  the  trial. 
Mocker  v.  Cardclla,  1  Wasli.  St.  l.m 

55  Kilburn  v.  Ritchie,  2  Cal.  146;  56  Am.  Dec.  326. 


587  USE  AXD  occurATiJN.  §§  9G1  UGJ 

gether  Avitli  furniture,  liueu  and  oilier  household  necessaries 
of  the  plaintih'  which  were  therein  J,  by  the  plaiutili's  permis- 
sion, as  his  tenant,  from,  etc. 

§  961.   For  the  hire  of  personal  property. 
Form  No.  249. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  Tnat  between  the day  of ^  18-  •?  and 

the day  of ,  18.  .,  the  defendant  hired 

from  the  plaintiff  [horses,  carriages,  etc.],  for  which  he  prom- 
ised to  pay  the  plaintiff,  on  account  thereof,  the  sum  of 

dollars  on  the day  of ,  18.  . 

II.  That  the  defendant  has  not  paid  the  same  [or  that  no 
part  of  the  same  has  been  paid  except  the  sum  of,  etc.] 

[Demand  of  Judgment.] 

§  962.  Essential  allegations.  Facts  on  which  the  amount  of 
compensation  depends  must  be  set  forth.^*^  The  word  "  hired  " 
implies  a  request. ^'^ 

§  963.  Hire  of  a  piano-forte,  with  damages  for  not  returning  it. 
Form  No.   250. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

First. —  For  a  first  cause  of  action: 

I.  That  on  the   day  of   ,  1 8 .  . ,  at 

,  the  defendant  hired  from  the  plaintiff  one  piano- 
forte, the  property  of  the  plaintiff,  for  the  space  of  [six]  months, 
then  next  ensuing,  to  be  returned  to  this  plaintiff  at  the  expira- 
tion of  said  time  in  good  condition,  reasonable  wear  excepted, 
for  the  use  of  which  he  promised  to  pay  this  plaintiff  a  reason- 
able sum  [or  state  how  much]. 

IT.  That dollars  was  a  rea.'sonablp  sum  for  the 

hire  of  the  same. 

III.  That  ho  has  not  paid  iho  same. 
Second. — .\nd  for  a  second  cause  of  action: 

T.  Tlint  the  value  of  the  piano-forto  so  hired  by  the  defend- 
ant, as  above  allofjod,  was dollars,  and  that  the  de- 
fondant,  in  violation  of  liis  agreement,  has  not  returned  the 

B«  T?olyoa  V.  Dro.w,   1    Dm.   r.fll. 
B7  Emory  v.  Ffll.  2  T.  K.  2.S. 


§  9 '>i  FOUMS   OK   OOx^lPLAINTS.  588 

samo,  althoiigli  ho  \v;u^  on  the day  of , 

18.  .,  al ,  requested  by  tlie  plaiiitill'  so  to  do;  to 

the  damage  of  the  plaintii!   dollars. 

[Demand  of  Judgment.] 

§  964.   Hire  of  furniture,  etc.,  with  damages  for    ill-use. 
f  011)1  No.   251. 
[Title.] 
Tlie  plaintiir  coinphiins,  and  alleges: 
First. —  For  a  lirst  cause  of  action: 

I.  That  on  the   day  of   ,  18.  .,  at 

,  the  plaintiff  rented  to  the  defendant,  and  the 

defendant  hired  from  the  plaintilf,  household  furniture,  plate, 
pictures,  and  hooks,  the  property  of  the  plaintiff,  to-wit  [de- 
scribe the  articles),  for  the  space  of   then  next 

ensuing,  to  be  returned  by  him  to  the  plaintiff'  at  the  expiration 
of  said  time,  in  good  condition,  reasonable  wear  and  tear  thereof 
excepted. 

II.  That  he  promised  to  pay  the  plaintiff"  for  the  use  thereof 

dollars    [in   equal   quarterly   payments,   on   the 

days  of thereafter]. 

III.  That  no  part  thereof  has  been  paid. 
Second. —  For  a  second  cause  of  action: 

I.  [Allege  as  in  preceding  form  to  II.] 

II.  The  plaintiff  further  alleges  that  the  value  of  the  prop- 
erty so  hired  by  the  defendant,  as  above  alleged,  was 

dollars. 

III.  That  the  defendant,  m  violation  of  his  said  agreement 
to  return  the  same  in  good  condition,  neglected  the  same,  and 
throTigh  his  negligence,  carelassness,  and  ill-use  the  same  be- 
came broken,  defaced,  and  injured  beyond  the  reasonable  wear 
thereof,  and  in  that  condition  were  returned  to  the  plaintiff,  to 
his  damage dollars. 

[Demand  of  Judgment.] 


SUBDITISIOiSr  THIED. 

UPON    WRITTEN    INSTRUMENTS    I^OR    THE    PAYMENT    OF 
MONEY  ONLY. 


CHAPTER  I. 

NEGOTIABLE  PAPER,   BONDS,  ETC. 

§  965.   Against  maker. 

Form  No.  252. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  the    defendant,  in    consideration  of    , 

made,  executed,  and  delivered  to  the  plaintiff,  a  certain  instru- 
ment in  writing,  of  which  a  copy  is  hereto  annexed  and  made  a 
part  hereof  [or  an  instrument  in  writing  in  the  words  and 
figures  following,  to-wit]. 

II.  That  hy  the  terms  of  said  written  instrument,  the  defend- 
ant became  indebted  to  the  plaintiff  in  the  sum  of 

dollars. 

III.  That  the  plaintiff  has  duly  performed  all  the  conditions 
thereof  on  his  part. 

IV.  That  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  .Ttdcmext.] 

5  066.  Altered  instrument  —  onus  probandi.  A  party  who 
claims  under  an  instniinent  which  appears  upon  its  face  to 
have  been  altered,  is  bound  to  explain  the  alteration.  But  not 
so,  when  the  alteration  is  averred  by  the  opposite  party,  and 
it  does  not  appear  upon  the  face  of  the  instrument.^  The 
alteration  of  the  number  of  a  state  bond,  payable  to  bearer,  and 

1  UnltPfl  Statps  V.  Uinn,  1  TTow.  (V.  S.»  104:  Orlpll  v.  flallnp,  r,2 
Towa.  2~<P,:  MontpomPiT  v.  rrnsstlnvnit.  ftO  Ala.  r^-p,:  24  Am.  S).  Kop. 
832:  Nell  v.  Casf.  2.'.  Kan.  .^.10;  :M  Am.  Rop.  2."»9. 


§  ;»G7  FORMS   OF   COxM PLAINTS.  590 

not  reqiiii'LHl  by  law  to  be  iiunibercd,  is  immaterial,  and  though 
made  wiili  liaudulent  intent,  does  not  avoid  it  in  the  hands  of 
a  tfub8eij[ueiiL  bona  fide  holder  for  value  without  notice.^  In 
California,  the  Code  provides  that  the  party  producing  a  writ- 
ing as  genuine  which  has  been  altered,  or  appears  to  have  been 
altered,  after  its  execution,  in  a  part  material  to  the  question 
in  dispute,  must  account  for  the  appearance  or  alteration.  .He 
may  show  that  the  alteration  was  made  by  another  without  his 
concurrence,  or  was  made  with  the  consent  of  the  parties  affected 
by  it,  or  otherwise  properly  or  innocently  made,  or  that  the 
alteration  did  not  change  the  meaning  or  language  of  the  in- 
strument. If  he  do  that,  he  may  give  the  writing  in  evidence, 
but  not  otherwise.^ 

§  967.  Consideration,  when  and  how  must  be  alleged.  Where 
a  copy  of  the  instrument  declared  on  is  set  out  in  the  complaint, 
and  it  purports  to  be  for  value  received,  that  is  a  sufficient 
allegation  of  a  consideration.^  In  California,  a  written  instru- 
ment is  presumptive  evidence  of  a  consideration.^  In  declar- 
ing upon  such  instrument,  it  may  be  unnecessary  to  aver  a 
consideration  if  the  instrument  set  out  expresses  one;  but  if 
none  is  expressed  on  the  face  of  the  insrument,  it  is;  and  it 
is  the  better  practice  in  all  cases  unless  upon  negotiable  instru- 
ments. Where  the  instrument  neither  expresses  a  considera- 
tion nor,  as  in  the  case  of  a  sealed  instrument  or  negotiable 
paper,  imports  one,  a  consideration  should  be  averred.®  Where 
the  instrument  requires  a  consideration  to  support  it,  the  con- 
sideration must  be  averred  in  the  complaint.'^  In  an  action  on 
a  ^Titten  instrument,  it  is  not  necessary  to  set  out  the  con- 
sideration.^ In  Iowa  and  Indiana,  an  agreement  in  writing 
imjwrts   a   consideration.^     In   a   sealed    instrument,   the    seal 

2  Commonwoalth  v.  Emigrant  Industrial  Sav.  Bank,  98  Mass.  12; 
9.3  Am.  Deo.  120. 

3Cal.  Code  Civ.  Pro.,  §  19S2;  see  Miller  v.  T.uco,  SO  Cal.  2.57; 
First  Nat.  Rank  v.  Wolff,   79  id.  09. 

4  Jerome  v.  Wliitney,  7  Johns.  321;  Walrad  v.  Petrie,  4  Wend. 
575;  Prindle  v.  Canithers,  15  N.  Y.  425. 

5  Civil  Code.  §  1014;  see  §  .321,  ante. 

6  Spear  v.  Downing,  12  Abb.  Pr.  4.37. 

^  Prindle  v.  Carutliors.  10  ITow.  Pr.  .3.3:  .Toseph  v.  Holt,  .37  Cal.  2.50. 
8  Sloan  V.  Cibson,  4  Mo.  .32;  Caples  v.   Branham,  20  id.  244;  64 
Am.  Dec.  18.3. 
OTousley  v.  Olds,  6  Clark,  .526. 


591  NEGOTIABLE  PAPER,  BONDS,  ETC.  §  968 

imports  consideration.^'^     !So,  in  an  undertaking  to  answer  for 
the  debt  of  another." 

§  968.  Construction.  In  construing  written  instruments,  tlie 
circumstances  under  which  they  were  written,  and  the  subse- 
quent conduct  of  the  parties,  may  be  consulted.^^  Under  the 
Code,  the  recitals  of  an  instrument  averred  in  a  complaint  to 
liave  been  executed  by  the  defendant,  have  the  same  effect  as 
specific  averments  of  the  truth  of  the  facts  recited.^^  When  the 
plaintiff  sets  out  in  his  complaint  the  contract  sued  on  in  the 
terms  in  which  it  is  written,  and  then  puts  a  false  construction 
on  its  terms,  the  allegation  repugnant  to  its  terms  should  be 
regarded  as  surplusage;^"*  and  where  a  declaration  contains  an 
averment  of  a  fact  dehors  the  written  contract,  which  is  in 
itself  immaterial,  the  party  making  such  averment  is  not  bound 
to  prove  it.^^  In  Massachusetts,  where  a  written  agreement 
has  been  executed  by  one  person  only,  by  which  he  agreed  to 
deliver  to  another,  upon  the  formation  of  a  coal  company, 
and  when  the  certificate  should  have  been  issued,  a  certain 
amount  of  the  stock  of  the  company,  and  the  agreement  recites 
that  the  person  who  was  to  receive  the  stock  agreed,  in  con- 
sideration thereof,  to  sell  a  certain  amount  of  the  stock  of  the 
company  at  a  specified  valuation,  and  collect  payment  therefor, 
a  declaration  in  an  action  against  the  signer  of  the  agreement 
is  demurrable  which  does  not  allege  that  there  was  a  considera- 
tion for  the  defendant's  promise,  or  that  the  company  lias  been 
formed,  the  certificates  issued,  or  the  specified  amount  of  stock 
sold,  and  payment  therefor  collected  by  the  plaintiff.^® 

lOMcCarty  v.  Beach,  10  Cal.  401;  Willis  v.  Kempt,  17  id.  98; 
Clark  V.  Tliorijo,  2  Bosw.  CSO;  County  of  MontjjjomoiT  v.  Aucliley, 
92  Mo.  12<). 

11  Bush  V.  Stevens,  24  Wend.  2.">(;.  A  valuable  consid(M-ation  for 
the  assumption  of  a  contract  to  furnish  water  is  sntliciently  sliown 
by  an  allegation  in  tlie  comi)!aint  tliat  tlio  defendant,  for  a  con- 
siderable time,  coUoctcHl  tlie  i)rice  and  notes  therein  mentioned. 
IIorsl<y  v.  Water  Co.,  U  .Mont.  220. 

12  McNeil  v.  Shirley,  .",:'►  Cal.  2<»2. 
IS  Slack  V.  Heath,  1   Abb.  Br.  ?,:n. 

HBove  v.  S.  N.  L.  W.  &  M.  Co.,  .*?2  Cal.  (nJ9;  91  Am.  Deo.  G02; 
Stoddard  v.  Ti-cadwell,  2r,  Cal.  300. 

1-'  Wilson  v.  Codman's  Executors,  ?>  Crnnch,  lO.I. 

11  Murdcxk  v.  Caldwell,  S  Allen  (Mass.).  .",09.  On  the  back  of  a 
coitiflcato  for  stock  owned  1)y  the  plaintiff,  tlH>  defendants  indorsed 
un  agreement  to  pay  the  plaintiff  therefor  a  certain  amount  after 


§§  909-972  roKMs  of  complaints.  592 

All  llio  tonus  of  lilt'  promise,  iiicliuling-  the  kind  of  money  in 
wliieh  the  iiayiuent  is  lo  l)e  made,  are  to  be  ascortaiuod  by  iiu 
inspeetion  and  eonslruclion  oi  the  iuslrument.^'^ 

§  969.  Date  of  an  instrument.  iu  pleading  a  written  iostru- 
meiit,  c.  g.,  a  release,  if  the  only  materiality  of  the  date  is  that 
it  was  alter  another  event,  it  is  sulhcient  to  say  that  it  was  so.^** 

§  970.  Delivery.  A  delivery  of  a  deed  need  not  be  stated  in 
a  pleading,  and  it  may  be  stated  to  have  been  made  on  a  day 
other  than  its  date.  Time  need  not  be  averred,  unless  it  be  the 
essence  of  the  contract.^''  That  an  instrument  was  executed, 
imports  a  delivery.^*^  The  delivery  of  a  promissory  note  is  suffi- 
ciently averred  by  implication,  and  indorsement  is  unnecessary 
to  transfer  the  title.^^ 

§  971.  Executed  implies  subscribed.  An  averment  that  an 
agreement  was  "  executed,"  amounts  to  an  averment  that  it  was 
"  subscribed  "  by  the  party  to  be  charged.^^  If,  in  pleading  a 
deed  executed  by  a  married  woman,  the  pleader  states  that  it 
was  executed  by  attorney,  he  must  also  state  the  facts  which 
make  the  case  one  in  which  such  mode  of  execution  is  valid,  or 
his  pleading  is  demurrable.^ 

§  972.  Foreign  language.  If  the  instrtiment  is  in  a  foreign 
language,  it  is  sufficient  on  demurrer  to  set  it  forth  in  that  Ian- 
guage.^^  But  it  is  better  to  plead  it  according  to  its  legal 
effect. 

three  years  on  the  surrender  of  the  certificate.  In  an  action 
tbereon,  it  Avas  held  iinnecessary  to  allejre  a  consideration  for  the 
promise,  but  that  it  was  sufficient  that  the  plaintiff  accepted  it,  and 
notified  the  defendants  thereof  in  a  reasonable  time,  and  before  the 
offer  had  been  withdrawn.    Wheaton  v.  Rampacker,  3  Wy.  442. 

17  Burnett  v.  Stearns,  33  Cal.  468. 

iR  Kellojrg  V.  Baker,  1.5  Abb.  Pr.  2.S0. 

19  Cro.  Eliz.  178;  Ashmore  v.  Rypley,  Cro.  .Tac  420;  Moore  v.  .Tones, 
2  Ld.  Raym.  1.'").38;  Tompkins  v.  Corwin,  9  Cow.  255;  Brinkerhoff  v. 
Lawrence,  2  Sandf.  Cb.  400. 

20  Brinkerlioff  v.  Lawrence,  2  Sandf.  Ch.  400. 

21  rerdy  v.  Vermilyca,  8  N.  Y.  340. 

22  Cheney  v.  Cook,  7  Wis.  413. 

2.-?  .Tohnston  v.  Taylor,  15  Abb.  Pr.  339. 
24  Nourny  v.  Dubosty,  12  Abb.  Pr.  128. 


593  NEGOTIABLE   PAPER,   BONDS,   ETC.         §§    973-976 

§  973.  Genuineness  deemed  admitted.  Wlieu  au  action  is 
brought  upon  a  written  instrument,  and  the  complaint  contains 
a  copy  of  such  instrument,  or  a  copy  is  annexed  thereto,  the 
genuineness  and  due  execution  of  sucli  instrument  shall  be 
deemed  admitted,  unless  the  answer  denying  the  same  be  A^eri- 
fied.^^  This  section  ^tends  only  to  those  parties  who  are  al- 
leged to  have  "  signed  "  the  instrument.^*'  Therefore,  if  the 
action  is  against  an  administrator,  the  genuineness  of  the  signa- 
ture must  be  proved.^^  So  proceedings  which  are  void  by  reason 
of  the  infirmity  of  the  statute  under  which  they  are  had,  are 
not  cured  by  an  averment  in  a  complaint  that  they  were  duly 
and  legally  had;  and  a  failure  to  deny  the  averment  in  the  an- 
swer i8  not  an  admission  that  the  proceedings  were  valid  or 
legal.^ 

§  974.  Identity.  Where  the  note  was  made  payable  to  G. 
W.,  and  the  plaintiff  named  himself  as  Gilbert  W.,  it  was  held 
that  he  should  be  presumed  the  same  person.^''  "Whore  the 
note  was  signed  in  the  name  of  one  of  the  partnership  ''  &  Co.," 
and  in  the  action  the  defendants  were  named  individually,  it 
was  held  sufficient. ^^ 

§  975.  Indebtedness  of  defendant.  If  a  complaint  should 
only  allege  that  defendant  was  indebted  to  plaintitf  in  a  named 
sum,  which  defendant  refused  to  pay,  it  would  he  insufficient. 
It  must  allege  the  facts  which   constitute  the  indebtedness.^^ 

§  976.  Indorsement  of  sealed  instrument.  Assiiiiifysif  may  be 
brought  on  the  unsealed  indorsement  of  a  sealed  writing. ^^ 

ai  Pal.  rode-  Civ.   Pro..   S   447. 

2B  Heath  v.  Lent.  1  Cal.  411. 

27  Id. 

2«  Toople  V.  Hastings,  2r)  Cal.  440. 

2»  Mar-sliall  v.  Roekwood,  12  IIow.   Tr.  4."2. 

30  Bnteliors  &  Drovers'  liank  v.  .Taoob.son.  ir,  .\Mi.  I'r.  21.S; 
S.  C.  24  IIow.  rr.  204.  Tlie  insertion  of  tlie  name  of  "  Wilson  " 
for  that  of  "  Nelson,"  h.v  a  olcrical  error,  does  not  eonstidite  sueli 
a  varianr-o  between  the  iMtnd  set  out  in  the  foniplaint  and  tlie  bond 
ofTpred  in  evidenrc  as  fonid  in  an.v  manner  injure  the  dofcudants. 
Thnllieimer  v.  f'row,  'iP,  Pol.  P,'.)~\  see  Ilincliman  v.  Railway  Co., 
14  Wasli.  St.  .^40. 

.?!  I'lerey  v.  Ral»in,  10  Tal.  L'S;  To  .\in.  Dec  (;!)2. 

32  Campbell   v.  .Tordan,   Ileniii.  r.;;4. 
A^JL.  1—75 


§§    971-1)81  I'OKMS   OF   COMPLAINTS.  594 

§  977.  Interest  of  parties.  Where  the  coveuaut  purported 
to  be  uiuJe  between  two  persons  by  name,  o£  tlie  lirst  part,  and 
tlie  corporate  eonipany,  oi.tlie  seeond  part,  and  only  one  ol  tlic 
persons  of  the  hrst  part  signed  the  instrument,  and  the  cove- 
nant ran  between  the  party  of  the  lirst  part  and  the  party  of 
the  seeond  part,  it  was  proper  for  the  persi^n  who  had  signed  on 
the  first  part  to  sue  alone;  because  the  covenant  inured  to  the 
benefit  of  those  who  were  parties  to  it.^"^ 

§  978.  Issue  of  warrant.  Averring  the  issue  of  a  warrant 
imports  a  seal,  if  the  case  is  one  in  which  a  seal  is  necessary.''"* 

§  979.  liost  instrument.  A  party  need  not  plead  loss  of  an 
instrument,  unless  it  be  a  negotiable  instrument  properly  in- 
dorsed.^^  A  motion  to  make  a  pleading  more  definite  and  cer- 
tain, by  setting  forth  the  contents  of  a  written  instrument  relied 
on  by  the  pleader,  should  not  prevail  where  it  appears  that  the 
instrument  is  lost,  and  the  pleading  apprises  the  adverse  party 
of  the  nature  and  effect  of  the  instrument.^'' 

§  980.  New  promise,  when  to  be  alleged.  In  California  in  ac- 
tions upon  written  instruments  for  the  payment  of  money,  as 
jiromissory  notes,  the  date,  being  shown,  shows  the  period  when 
the  right  of  action  accrues.  In  such  cases,  any  new  promise 
which  has  been  made,  renewing  or  continuing  the  .contract, 
shoidd  be  alleged.^'^  In  Ohio,  this  provision  under  the  statute 
extends  to  accounts  and  other  instruments  "  for  the  uncondi- 
tional payment  of  money  only."  But  a  judgment  can  not  be 
so  pleaded.^® 

§  981.  Promissory  notes.  When  a  oopy  of  the  promissory 
note  is  annexed  and  the  answer  is  not  verified,  the  due  execution 
and  genuineness  of  the  note  is  admitted.^''  So  of  a  bond.  And 
if  the  complaint  contains  a  copy  of  the  written  instrument 
sued  on,  and  is  not  verified,  and  the  answer  denies  its  execu- 

33  Phil.,  W.  &  B.  R.  R.  Co.  V.  Howard,  13  How.  (U.  S.)  308. 

34  Beck  man  v.  Traver,  20  Wond.  07. 

33  McChisky  v.  Gerhauser,  2  Nev.  47;  see  Adams  v.  Baker,  16  R. 
I.   1;  27  Am.  St.  Rep.  721. 

3«  Kellogjr  V.  Baker,  1.5  Abb.  Pr.  2SR. 

37  Smith  V.  Richmond.  19  Cal.  481:  see  §  fi82.  onfc. 

3R  Memphis  Mod.  Colleso  v.  Newton,  2  Handy,  lfi3. 

3!>  Burnett  v.  Stearns.  33  Cal.  408;  Horn  v.  Voloano  Wat.  Co..  13 
id.  r.2:  73  Am.  Deo.  509;  Kinney  v.  Osborne,  14  Cal.  112. 


595  NEGOTIABLE  PAPER,  BONDS,  ETC.    §§  982,  983 

tion  but  is  not  sworn  to,  the  note  is  admissible  in  evidence  with.- 
out  proof  of  the  genuineness  of  the  signature.^" 

§  982.  Written  instruments,  how  proved.  xVn  instrument  in 
writing,  executed  and  attested  by  a  subscribing  witness  in  a 
foreign  country,  or  beyond  the  jurisdiction  of  the  court,  can 
be  proved  by  evidence  of  the  handwriting  of  the  party  who 
executed  it.^^  The  intent  of  the  statute  is  fully  carried  out  by 
excluding  parol  testimony  to  contradict  a  deed;  but  where  par- 
ties admit  the  real  facts  of  the  transaction  in  their  pleadings, 
these  admissions  are  to  be  taken  as  modifications  of  the  instru- 
ment,^^ as  no  proof  is  required  of  facts  admitted  or  not  denied.^^ 
Where  a  written  instrument  is  made  part  of  the  complaint  with 
both  the  first  and  second  counts,  and  in  the  second  count  is 
referred  to  as  already  on  file  with  the  former,  the  latter  will  be 
sufficient.^'*  The  legal  efi'ect  of  written  documents  offered  in 
evidence  is  a  question  for  the  court  and  not  for  the  jury."*^ 

§  983.  Sealed  contract  —  allegations  in  actions  on.  Where  the 
sealing  of  an  instrument  is  sufficient  according  to  the  laws  of  a 
state  in  which  it  was  made,  the  remedy  upon  it  in  a  state  in 
which  such  mode  of  sealing  is  not  sufficient,  must  be  according 
to  the  law  of  the  latter  state,  instead  of  the  former.  Thus,  in 
New  York,  an  action  on  a  deed  sealed  with  a  scroll  must  be  an 
action  appropriate  to  unsealed  instruments.^*'  An  impression 
of  the  seal  of  a  corporation  stamped  upon  the  paper  on  which 
a  mortgage  of  the  corporation  is  written,  is  a  good  seal,  al- 
though no  adhesive  substance  is  used.^^  In  declaring  on  a 
specialty,  it  must  be  averred  that  it  was  sealed  by  the  defendant. 
Setting  it  forth,  with  its  conclusion,  that  it  was  signed  and 

40  Corcoran  v.  Doll.  82  Cal.  8.3;  Hom  v.  Volr-ano  Wat.  Co.,  1.3  Id. 
62;  73  Am.  Dec.  .^>r,9;  Sacramento  County  v.  Hinl,  .31  Cal.  OG;  Bur- 
nett V.  Stearns,  .3.3  id.  408. 

41  MrMinn  v.  Wlielan,  27  Cal.  300. 

42  1,06  V.  Evans,  8  Cal.  424. 

43  Pattorson  v.  Ely.  V.i  Cal.  28;  Landfrn  v.  Bolton,  20  id.  416. 

44  Peck  V.  Ilensloy,  21   Ind.  344. 

4''«  Carjientor  v.  Thurston.  24  Cal.  20.8. 

■»«  Wan-en  v.  Lync-li.  .5  .Johns.  2.30;  Van  Sant  Wood  v.  Sandford,  12 
Id.  198;  Colt  V.  Milliken.  1  Den.  370;  Andrews  v.  ITerrlot,  4  Cow. 
50S;  4  Kent,  4.^51;  V.  S.  Bank  v.  Donnally.  8  Pet.  302;  Story's  Confl. 
of  T..  47;  Thrasher  v.  Everett.  3  f;ill  &•  .1.  234;  Douglass  v. 
Oldham.  0  N.  H.  IHO. 

47Heudee  v.  Pinkerlou,  14  Allen  (Mass.),  381. 


§§  984, 985  FORMS  of  complaints.  596 

scaled  witli  llu'  nana'  oi'  the  ilcrciulanl  ami  with  an  L.  S.,  is  not 
sullicienl/''^  although  ••indenture;'  '•deed,"  "writing  obliga- 
tory," were  held  to  import  a  t^eal.-*"*  The  delivery  of  a  [specialty, 
though  essential  to  its  validity,  need  not  be  stated  in  a  plead- 
ing. It  is  enough  to  allege  that  it  was  niatle  by  the  defendant, 
as  that  implies  delivery."'"  Where  the  law  requires  an  instru- 
ment to  be  nnder  seal  to  authorize  a  particular  remedy  thereon, 
it  is  neecssary  to  state  that  it  is  under  seal.  But  where  it  is 
wholly  innnaterial  whether  the  instrument  w^as  or  was  not  under 
seal,  an  averment  that  it  was  in  writing  is  supported  by  the  pro- 
duction of  a  written  instrument,  either  with  or  without  a  seal 
attaehed.^^  In  Calil'ornia  all  distinctions  between  sealed  and 
unsealed  instruments  are  abolished.""^ 

§  984.  Subscription  by  agent.  The  W'Ord  '^  agent,"  appended 
to  the  signature  of  the  agent,  is  not  more  dcscriptio  pcrsonae. 
It  is  the  designation  of  the  capacity  in  which  he  acted.^^  Where 
a  contract  purported  upon  its  face  to  have  been  made  l)y  an 
agent,  and  it  is  set  forth  in  full  in  the  complaint,  it  must  be 
alleged  that  the  agency  was  duly  constituted.^"* 

§  985.  Writing  implied.  An  award  set  forth,  "  as  in  the 
form  following,"  and  with  a  date,  may  be  presumed  to  have 
been  in  writing.^^  AYhcn  the  terms  and  conditions  of  an  agree- 
ment are  set  out  in  a  complaint,  and  the  violation  of  that  agree- 

48  Cabell  V.  Vauglian,  1  Saund.  291;  1  Cliii:.  PI.  109;  Van  Sant  Wood 
V.  Sandford,  12  Johns.  197;  Macomb  v.  Tliompson,  14  id.  207.  To 
much  the  same  effect,  Staunton  v.  Camp,  4  Barb.  274. 

49  Cabell  V.  Vaughan,  1  Saund.  291;  Phillips  v.  Clift,  4  Hurlst.  & 
N.  168. 

50  1  Chit.  PI.  348;  Cabell  v.  Vaughan,  1  Saund.  291;  :\Iarsliall  v. 
Rock  wood,  12  How.  Pr.  4.52;  Lafayette  Insurance  Co.  v.  Rogers, 
.30  Barl).  491. 

51  Jenkins  v.  Pell.  20  Wend.  4.50. 

52  Civil  Cwle.  §  1G29. 

53  Sayre  v.  Nichols,  7  Cal.  .535;  08  Am.  Dec.  280;  see  Tolmie  v. 
r>ean,  Wash.  Ter.  46.  That  "  executed  "  implies  "  subscribed,"  see 
Cheney  v.  Cook,  7  Wis.  413. 

54  Regents  v.  Detroit  Society,  12  Mich.  138.  In  an  action  upon  an 
insti-ument  executed  by  an  attorney  in  fact,  which  is  made  a  part 
of  tlie  fomplaint,  it  is  sufReient  to  allege  the  execution  by  the 
prineipal  without  setting  ont  that  the  agent  had  been  constituted 
attorney  in  fart  for  the  pnrpose  of  its  execution.  Richmond  v. 
Vonrliees,  10  Wash.  St.  316. 

55  Munro  v.  Alaire,  2  Cai.  320. 


597  NEGOTIABLE    PAPER,    BONDS,    ETC.  §§  986-989 

ment  is  charged  against  the  defendant,  if  it  is  such  an 
instrument  as  the  law  requires  to  be  in  writing,  and  the  com- 
plaint is  silent  whether  it  was  oral  or  in  wnriting,  courts  will 
presume  it  was  a  lawful  written  instrument,  until  the  contrary 
appears.^" 

§  986.    On  a  bond  for  the  payment  of  money  only. 
Form  No.   253. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18.  .,  at 

,  the  defendant  covenanted  with  the  plaintiff,  un- 
der his  hand  and  seal,  to  pay  to  the  plaintiff  the  sum  of 
dollars. 

II.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgiient.] 

§  987.  Breach,  how  alleged.  It  is  not  alone  sufficient  to  show 
a  technical  breach  of  the  literal  terms  of  a  covenant  in  a  bond;^'^ 
but  upon  a  reasonable  interpretation  of  the  intent  and  meaning 
of  the  covenant,  to  be  ascertained  from  all  it.s  terms,  it  must 
likewise  appear  that  some  suhstantial  right  guaranteed  thereby 
has  been  infringed,  or  some  of  its  purposes  defeated.^^  It  is 
suggested  that  specific  breaches  should  be  assigned,  even  on  a 
mere  money  bond.^'-*  In  California,  wliere  the  contract  or 
bond  was  for  payment  in  gold  coin,  it  must  be  averred,  and 
judgment  demanded  accordingly. 

§  988.  Mutilated  bond.  If  the  obligee  tear  off  the  seal  or  can- 
cel a  l)ond,  in  consequence  of  fraud  and  imposition  practiced 
by  the  obligor,  he  may  declare  on  such  mutilated  bond  as  the 
deed  of  the  party,  making  a  proper  averment  of  the  special 
facts.^o 

§  989.  What  written  obligation  imports.  The  term  "  written 
oliligntion"   imports;   n    scaled    iiistnunent."^     lender   the   stat- 

•'•«  Van   Doren  v.  Tjadfir.  1   Xev.  .'^SO. 

S7  What  avonncnts  on  a  bond  are  sutlifient  to  charco  n  jrunrnntor, 
see  Tai»pan  v.  Cleveland  \\.  R.  Co.,  4  West.  Law  Month.  07. 

fi«T.Pvi1sky   v.  .Johnson,   '.\r^  C'al.    11. 

f"  Wpstern  Biink  v.  SherwcKxl,  liO  P.arb.  .'!.S.T;  c-onipaio  Supervisors. 
efr.  V.  Sender.  41  "Wis.  ?.74;  "Reynolds  v.  ITurst.  IS  W.  Va.  n4S; 
Gibson  V.  Robinson.  00  fJa.  7.W:  ?.r>  Am.  St.  "Rop.  2."0. 

«f>S  T.  R.  I.'.r^:  T'nited  States  v.  Spaldipcr    2  Mason  C.  C.  47S 

«i  riark  V.   Phillips,  Ilempst.  204;   Paddoek  v.   Hume,  <;  OroR.  82. 


§§    990-i)y3  FORMS    OF    COJU'LAINTS.  598 

ulos  oi'  L'alil'ornia,  bondti  are  ou  the  same  fooling  ab  uuderLak- 
ings/'- 

§  990.   On  a  bond  —  pleading  it  according  to  its  legal  effect. 

I'or)ii  No.  -?^7. 
[TlTLE.J 

The  pkiintilf  complains,  and  alleges: 

I.  That  on  the   day  oi   ,  18. .,  at 

,  the  defendant  covenanted  with  the  plaintiff,  un- 
der his  hand  and  seal,  to  pay  to  the  plaintiff  the  sum  of  [state 

the  actual  debt],  in  gold  coin,  on  the day  of , 

18.  .,  with  interest  from,  etc.  [or  otherwise,  according  to  the  con- 
dition]. 

II.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  991.   By  a  surviving  obligee,  on  a  joint  bond. 
Form  No.  ^3S- 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18.  .,  at 

,  the  defendant  made  and  sealed  his  certain 

bond,  of  which  the  following  is  a  copy  [copy  the  bond],  and 
thereby  covenanted  with  the  plaintiff  and  one  R.  N.  to  pay  them 

the  sum  of    dollars    [on,   etc.,   stating  w^hen  it 

became  payable]. 

II.  That  on  the day  of ,  18.  .,  at 

,  said  R.  N".  died. 

III.  That  no  part  thereof  has  been  paid. 

[Demand  of  Judgment.] 

§992.  Averment  of  death  of  joint  obligee.  One  of  two  joint 
obligees  can  not  sue,  unless  he  avers  that  the  other  is  dead. 
Wherever,  by  reason  of  a  several  interest,  one  may  sue,  he  must 
set  forth  the  bond  truly,  and  then  by  proper  averments  show 
a  cause  of  action  in  himself  alone.^^ 

§  993.  Joint  and  several  bonds.  No  recovery  can  1)0  bnd  on 
a  bond  purporting  to  be  the  joint  bond  of  tlie  prineijial  and 

fiz  Canfielfl  v.  Rates,  13  Oal.  000.  rioadinpr  an  instrument  accord- 
inff  to  its  lej^al  effer-t.    S(>e  Brown  v.  Champlin,  00  N.  Y.  214. 

♦■'3  Ehle  V.  Purdy,  0  Wend.  029.  All  the  ohlie-eos  in  a  joint  bond 
must  join  in  an  ar-tion  tliproon,  or  some  suffifiont  oxouse  for  not 
joining  must  be  stated.    Strange  v.  Floyd,  9  Oratt.  474 


o\)d  ^CEUUTIABLE    PAPER,    BONDS,    ETC.  §   9ti3 

sureties,  but  signed  by  the  latter  ouly.*^^  It  is  otherwise  as  to 
a  joint  and  several  bond,  where  each  signer  is  considered  bound 
without  the  signature  of  the  others  named  as  obligors.^^  Where 
a  complaint  is  against  two  or  three  obligors,  it  must  aver  that 
all  three  have  tailed  to  pay  the  debt."**  L'nder  the  statute  of 
Indiana,  the  representatives  of  a  deceased  joint  obligor  may  be 
sued  on  a  joint  and  several  obligation."^  A  declaration  in  an 
action  of  debt  against  the  obligor,  setting  forth  a  joint  and 
several  bond,  can  not  be  annulled  by  adding  a  new  count,  set- 
ting forth  a  bond  by  the  defendant  and  another  person.*^ 

64  Sacramento  v.  Dunlap,  14  Cal.  421. 

65  Id. 

66  Robins  V.   Pope.   Hempst.  219. 

67  Curtis  v.   Bowrie,  2  McLean,  374. 

68  Postmaster-General  v.  Ridgeway,  Gilp.  135, 


CHAPTER  II. 

BILLS  OF  EXCHANGE. 

§  994.  Foreign  bills  —  payee  against  drawer  for  nonacceptance. 

I'or)n  No.   2^6. 
[Title.] 
The  plaintifl;  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18.  .,  at 

,  the  defendant  made  and  delivered  to  the  plaintill 

his  certain  bill  of  exchange  of  that  date,  of  which  the  following 
is  a  copy  [copy  the  bill] : 

II.  That  on  the day  of ,  18.  .,  the 

same  was  duly  presented  to  the  said  for  accept- 
ance, but  was  not  accepted,  and  was  thereupon  duly  protested  for 
nonacceptance. 

III.  That  due  notice  thereof    was  given  to  the  defendant. 

IV.  That  he  has  not  paid  the  same. 

V.  That  the  value  of  a  similar  bill  of  exchange  at  the  time  of 

said  protest  in   ,  that  l)eing  the  place  where  said 

bill  was  negotiated,  and  where  such  bills  were  currently  sold, 
was dollars. 

Wherefore  the  plaintiff  demands  judgment  against  the  de- 
fendant for  the  sum  of  .  ^ dollars  [the  amount  named 

in  the  bill],  and dollars  damages,  and  interest  on 

said  sums  from  the day  of ,  18.  .   [date 

of  protest],  and  costs  of  suit.^ 

§  995.  Definition.  A  bill  of  exchange  drawn  in  one  state 
upon  a  person  in  another  is  a  foreign  bill.^  And  such  bills  are, 
by  the  custom  of  merchants,  protested  if  dishonored.^ 

§  996.  Alteration.  If  a  person  who  has  no  aulhority  to  do 
so,  and  who  is  not  the  agent  of  the  payee  for  that  purpose,  writes 

'  Tlie  fifth  i)nrajrraph  above  is  drawn  niidtn-  section  32.38  of  the 
California  Civil  Codo. 

2  Dickons  v.  Real.  10  Pet.  .572;  Buckncr  v.  Finloy,  2  id.  58G;  Bank 
of  United  States  v.  Daniel,  12  id.  32. 

STownsley  v.  Sumrall,  2  Pet.  170. 


GUI  BILLS    OF    EXCHANGE.  §§    99?,    998 

across  the  face  of  a  draft,  payable  generally  in  money,  the  words, 
*'  payable  in  United  States  gold  coin,"  it  is  not  such  an  altera- 
tion of  the  draft  as  vitiates  it."*  An  alteration  is  material  and 
vitiating  which,  in  any  event,  may  alter  the  promisor's  liability, 
if  made  without  his  consent  at  the  time,  unless  subsequently 
approved  by  him.^  Erasing  the  words  "  to  order  of,"  and  in- 
serting "  or  bearer "  instead,  is  material,  and  avoids  the  note.*^ 
In  such  case  it  matters  not  whether  the  alteration  wa^  with 
fraudulent  intent  or  not,  except  as  such  intention  affects  the 
right  to  resort  to  the  original  indebtedness.'^ 

§  997.  Damages  on  foreign  bills,  protested.  In  California,  dam- 
ages are  allowed,  as  a  full  compensation  for  interest  accrued 
before  notice  of  dishonor;  re-exchange,  expenses,  and  all  other 
damages,  in  favor  of  holders  for  value  only,  upon  bills  of  ex- 
change drawn  or  negotiated  in  that  state  and  protested  for  non- 
acceptance  or  nonpayment,  as  follows:  1.  If  drawn  upon  any 
person  in  this  state,  two  dollars  upon  each  one  hundred  of 
the  principal  sum  specified  in  the  bill;  2.  If  drawn  upon  any 
person  out  of  this  state,  but  in  any  of  the  other  states  west  of 
the  Kocky  Mountains,  five  dollars  upon  each  one  hundred;  3. 
If  drawn  upon  any  person  in  any  of  the  United  States  east  of 
tlie  Hocky  ^lountains,  ten  dollars  upon  each  one  hundred;  4. 
If  drawn  upon  any  person  in  any  foreign  country,  fifteen  dollars 
upon  each  one  hundred.^ 

§  998.  Demand.  I  f  a  draft  does  not  specify  the  kind  of  money 
in  which  it  is  made  p.iyable,  a  demand  of  payment  in  gold  coin, 
whether  by  a  notary  or  the  holder,  is  not  sufficient  to  charge  the 
drawer.  The  demand  must  be  in  accordance  with  the  tenor  of 
the  draft."     In  tlie  absence  of  evidence  to  the  contrary,  the  ])rc- 

*  I.anRpnberfror  v.  Kroe.iror,  4S  r'al.  1  t7:  17  Am.  Ki-]).  IIS;  see, 
also,  Flint  v.  rraifr,  ■".!>  Bar]).  :'AU. 

s  I-anponljerpor  v.  Kroejier,  4S  Cal.  147:  17  .\in.  lie]).  41S;  see,  also, 
Flint  V.  Craifr,  .'!)  Harl».  :',UI:  Ilollis  v.  Harris,  '.Hi  Ala.  2.S,S;  Cline  v. 
fio(><]a\e.  2.3  Orcjr.  4fMi;  Reeves  v.  I'irrsoii.  _:*.  I  Inn.  1S.">. 

«  P.ontli  v.  Powers,  ">(;  \.  Y.  22. 

"  Id.;  see,  also,  Meyer  v.  IIiinel<e.  ">  S.  V.  412:  leversins:  S.  C, 
•  ;."i  Harh.  .304:  Seiltel  v.  Vanulian,  V,<.)  111.  2.";  Heal  v.  Holioris.  111! 
Mass.  .■(2.";  Evans  v.  Foreman,  tin  .Mo.  Il!i;  ( loixlsiiccd  v.  Culler.  ~'< 
111.   .'"..34. 

'^rivil  Code,  §g  .32,34.  323.''>:  see,  al.'^o.  I'ralal()i);,'o  v. 'Lareo,  47  Cal. 
37'<.  as  tr»  who  is  the  holder  in  the  si-nw  of  the  statute. 

9  Langcnberpcr  v.  Kroeper,  48  Cal.  147;  17  Am.   Hop.  418. 

76 


§^    l)!»l)-U)U"3  I'OUMS    OF    COMI'LAINTS.  i>02 

suini)tion  is  ilial   the  notary  tk'inauds  payiin'Jii  in  the  kind  vt 
iiiouoy  in  whifh  it  auucars  on  its  faee  to  l)e  made  payable.'^ 

S  999.  Dishonor.  Jn  C'alii'ornia  a  bill  of  oxcluuige,  payable  a 
certain  time  after  sight,  wliieh  is  uot  accepted  within  ten  days 
after  its  date,  in  addition  to  the  time  which  would  suilice,  with 
ordinary  diligence,  to  forward  it  for  acceptance,  is  presumed  to 
have  been  dishonored. ^^  A  negotiable  instrument  is  dishonored 
when  it  is  either  not  paid  or  not  accepted  according  to  its  tenor, 
on  presentment  for  that  purpose,  or  without  presentment,  where 
that  is  excused.^-  Although  a  check  may  be  actually  dishonored 
by  a  refusal  to  })ay  upon  proper  demand  before  presumptive 
dishonor,  yet  to  charge  the  check  with  the  infirmity  of  dis- 
honor in  the  hands  of  a  third  party  to  whom  it  has  been  trans- 
ferred for  a  valuable  consideration  before  the  expiration  of  the 
reasonable  time  which  must  elapse  before  presumptive  dishonor, 
notice  of  the  previous  actual  dishonor  must  be  brought  home 
to  him,  or  he  holds  it  free  from  the  taint  of  dishonor.^^* 

§  1000.  Difference  of  exchange.  On  a  bill  of  exchange,  pay- 
able at  a  particular  place,  it  seems  that  the  difference  of  exchange 
may  be  recovered,  if  the  declaration  contains  the  proper  aver- 
ment; but  this  is  not  the  rule  where  the  action  is  on  a  note,  and 
there  is  no  count  or  allegation  in  the  declaration  to  cover  the 
rate  of  exchange.^* 

§  1001.  Nonpayment.  In  a  declaration  on  a  foreign  bill  of 
exchange  for  nonpayment,  no  averment  of  a  presentment  for 
acceptance,  or  of  a  refusal  and  protest  for  nonacceptance  of  the 
bill  is  necessary. •^'^ 

§  1002.  Notice  of  dishonor.  Notice  of  dishonor  may  be  given 
by  a  holder,  or  by  any  party  to  the  instrument  wlio  might  be 
compelled  to  pay  it  to  the  holder,  and  who  would,  upon  taking 
it  up,  have  a  right  to  reimbursement  from  the  party  to  whom 
the  notice  is  given.^^ 

10  Langenberger  v.  Kroeprer  48  Oal.  147;  17  Am.  Rep.  418. 

11  Civil  Code  of  Cal..  §  3133. 

12  Civil  Co<le,  §  3141. 

1^.  ITinnrielmann  v.  Ilotalinp,  40  Cal.  Ill;  .5  Am.  Rep.  600. 
14  Wefd  V.  Miller,  1  MeI.ean,  423. 
1^  Brown  v.  Barry,  3  Dall.  305. 

10  Civil  Code.  §  3142.    For  servi<-e  of  notice,  see  id.,  §§  3144-3151. 
As  to  what  will  excuse  presentment  and  notice,  see  id.,  §§  3155-3160; 


603  BILLS    OF    EXCUAXUE.  §§    lOUo-lOUi 

§  1003.  Omission  of  demand  and  notice.  Tlie  Oinission  of  de- 
mand and  notice,  when  it  can  not  possibly  operate  to  the  injury 
of  the  indorse!  of  a  note  or  drawer  of  a  bill,  does  not  discharge 
him;  but  the  mere  insolvency  of  the  maker  does  not  excuse  neg- 
lect in  presenting  it.-^^ 

1004.  Protest,  when  necessary.  Protest  of  a  domestic  note  is 
unnecessary.^*  xV  bill  of  exchange  drawn  in  one  state  upon  a 
citizen  in  another  state  is  a  foreign  bill,  and  protest  is  neces- 
sary to  charge  the  indorser.^'^ 

§  1005.  Waiver  of  demand.  A  promise  by  an  indorser  after 
notice  of  nonpayment  of  a  note,  and  with  full  knowledge  of  all 
the  circumstances  attending  presentment  and  demand,  to  pay 
the  note  or  give  a  new  one,  will  constitute  a  waiver  of  any 
irregularities  in  presenting  or  demanding  the  same,  and  even 
of  presentment  and  demand  itself.^" 

1006.  Parties.  An  agent  to  whom  a  bill  of  exchange  has  been 
indorsed  in  blank  for  collection,  may  fill  up  the  assignment  to- 
himself,  and  bring  suit  in  his  own  name.^^ 

§  1007.   Payee  against  acceptor. 

Fonii  A^o.   257. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,  1 8 .  . ,  at 

,  the  defendant  made  and  delivered  to  the  plain- 
tiff his  certain  bill  of  exchange  of  that  date,  of  which  the  fol- 
lowing is  a  copy  [copy  of  the  bill]. 

Boe,  also.  Ilimmelmann  v.  Ilotalinjr,  40  Cal.  Ill:  r>  Am.  Rep.  (100; 
r>os  .Vngr'lf's  Rnnk  v.  Wallace.  101  Cal.  478. 

17  Smith  V.  Miller,  52  N.  Y.  V^Av,. 

'Tironnan  v.  I>owry,  4  Daly,  2'^?,.  In  the  absonoo  of  statute, 
the  protest  of  inland  bills  and  proniissoi-y  notes  is  not  retrarded 
aa  an  offirial  art.  roil)in  v.  Planters'  Nat.  Rank,  ST  ^'a.  Om ;  24 
Am.  St.  Rpp.  Cu?,. 

10  r'ommorfi.'il  Rank  of  Kcntncky  v.  Varnnm,   10  \.  V.  2';0. 

20  Mf.yer  V.  ITil.slirr.  4';  X.  Y.  2(;.":  Ricliard  v.  Roller,  ."1  TTow. 
Pr.  ."^Tl.  WiiivfT  f.f  demand  and  notieo.  See  ,\nnvi!le  \at.  Rank 
v.  Kettering.  K>0  Penn.  St.  .'.'',1:  ."1  Am.  Rep.  !>.'?0:  Stanley  v.  Mc- 
Elrath,  80  f'al.  440:  First  Nat.  I'.aiik  v.  Falkenhan.  94  id.  141; 
Wriirht   V.   IJesenfeld.  0.''.  id.   00. 

21  Orr  V.   Laev.  4   MeLean,  243. 


ij$    1(108-1011  I'OKMS    OF    COMl'LAiXTS.  GOl 

Co 

i\.  That  on  the day  oi'   ,  18.  .,  at 

,  the  del'eiidaiit  aceepled  the  said  bill. 

111.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 
[Demand  of  J  udument.J— 

§  1008.  Acceptance.  In  an  action  against  I).,  as  sole  acceptor 
of  a  bill  of  exchange,  the  plaint  ills  were  entitled  to  recover 
under  a  count  in  the  declaration,  stating  the  bill  to  have  been 
drawn  on  "  15.  &  (."o.,"  and  to  have  been  accepted  by  B.,  by 
the  name  and  style  of  "  B.  cV"  Co.,"  by  writing  the  name  of  "  B.  &, 
Co."  thereon.-^ 

§  1009.  Letter  of  credit,  A  letter  of  credit,  promising  uncon- 
ditionally to  accept  bills  drawn  upon  its  faith,  is  an  actual  ac- 
ceptance in  favor  of  a  person  who,  u})()n  its  faith,  receives  a  bill 
so  drawn  for  a  valuable  consideration.^"* 

§  1010.  Promise  to  indorse.  A  promise  to  indorse  under  a 
letter  of  credit  representing  a  person  to  he  good,  and  saying  1  hat 
the  writer  will  indorse  for  him  on  a  purchase  to  a  certain 
amount,  the  writer  is  not  liable  directly  for  the  amount  of  a 
sale  without  any  request  to  indorse,  and  unless  an  indorsement 
is  required  no  action  can  be  maintained.-" 

§  1011.  On  inland  bills  —  drawer  against  acceptor  for  nonpay- 
ment. 

Form   No.   258. 

[Title.] 
The  plaintiff  complains,  and  alleges: 
I.  That  on  the    day  of    18.  .,  at 

,  the  defendant  made  and  delivered  to  the  plain- 
tiff his  certain  bill  of  exchange  of  that  date,  of  which  the  fol- 
lowing is  a  copy  [copy  of  the  bill]. 

IT.  That  the  defendant  thereafter  accepted  the  said  bill. 

ITT.  That  ho  has  not  naid  the  same,  nor  any  part  thereof. 

[DeMAXD    OE   .TT'DOAtEXT.] 

22  To  recover  statutory  dnmapes,  see  prooodinc;  form. 

23  City  Bank  of  Oohunbus  v.  Boaeh,  1  Blatchf.  4.S8;  compare 
Lapeyre  v.  Gales,  2  Cranoh  C.  C.  201.  Where  the  declaration  in 
assumpsit  upon  a  bill  of  exchanse  alleged  an  acceptance  by  B.  & 
Co..  and  the  neeeptanr-p  was  "  B.  &  Co.,  per  F.,"  it  was  held  not  a 
varianee.    Meyer  v.  Blaek.  4  N.  Mex.  190. 

24  Xajrlee  v.  Lyman.  14  Cal.  4.^)0. 

2.';  Rtnffnrd  v.  Low.  16  .Tohns.  CI;  Stockbridge  v.  Sclioonmaker,  45 
Barb.  100. 


605  BILLS    OF    EXCHANGE.  §§    1012-1015 

§  1012.  Acceptance.  A  promise  that  a  drawer  will  pay  a 
draft  which  may  be  drawn  on  him  is  an  acceptance,  and  he 
may  be  sued  as  acceptor.^*^  An  unconditional  promise,  in  writ- 
ing, to  accept  a  bill  of  exchange  is  a  sullieient  acceptance  thereof, 
in  favor  of  every  person  who  upon  the  faith  thereof  has  taken 
the  bill  for  value  or  other  good  consideration.-^  If  the  bill  is 
payable  at  a  certain  time  after  "  sight,''  the  date  of  acceptance 
should  be  stated;  otherwise  it  is  not  necessary.  A  bill  drawn 
payable  so  many  days  after  sight,  means  after  presentment  for 
acceptance.^ 

S  1013.  Acceptor.  A  person,  not  personally  a  party  to  a  bill 
of  exchange,  who  for  a  consideration  accepts  the  same,  is  an 
acceptor,  equally  as  if  he  were  drawee.^*^  The  loss  of  the  ac- 
ceptance by  the  drawee  is  a  sufficient  consideration  for  the  ac- 
ceptance by  the  third  person.^" 

§  1014.  Corporations.  Where  a  draft  is  drawn  by  the  presi- 
dent and  secretary  of  a  corporation  upon  its  treasurer,  no  notice 
of  presentation  and  nonpayment  is  necessary  to  hold  the  cor- 
poration.^^ The  burden  of  proof  is  on  the  corporation  to  show- 
that  the  drawee  was  provided  with  funds  and  ready  to  pay  at 
maturity,  in  order  to  exempt  them  from  damages  and  costs.^^ 

S  1015.  Equities  between  parties.  "Where  a  creditor  takes  a 
bill  l)efore  maturity,  as  collateral  security  for  an  antecedent  debt, 
if  there  be  any  change  in  the  legal  rights  of  the  parties,  the 
creditor  becomes  the  holder  for  value,  and  the  bill  is  not  subject 
to  the  equities  between  the  parties.^^ 

ZflWakeflplrl  V.  Oreonwood,  29  Ca\.  mi;  Whilden  v.  Merchants, 
et".,  Nat.  r?nnk,  M  Ala.  1;  38  Am.  Rep.  1. 

27  Civil  Code,  §  ."^in?.  As  to  how  aoceptanoo  is  made,  who  en- 
titled to,  what  sufflriont  aooeplanot^  In-  separate  instrument,  what 
aereptanee  admits,  and  canfollation  of  aeceptanee,  see  Civil  Code 
rC.'il.i,  §  ?,^U:\.  mul  followiufr;  also.  Cortelyon  v.  Maben.  22  Neb.  (107 ; 
3  Am.  St.  Rep.  284;  Xoi-ton  v.  Knapp.  04  Towa,  112.  Acceptance  by 
teleirram  is  sufficient.  Rrinkman  v.  Hunter,  72  Mo.  172;  39  Am. 
Rep.  492:  Nevada  Rank  v.  T>uee.  139  Mass.  488. 

2«Mitehell  v.  DeKmiul.  1   Mason.  17r>. 

2»  Kelly  V.  I-ync'li,  22  Cal.  cni. 

80  Id. 

31  Dennis  v.  Talile  Mountain   Water  Co..  Id  Cal.  309. 

«2Woleott,  ete.  V.  Van  Santvoonl.  17  .Tolms.  248;  8  Am.  Deo.  39G; 
Falreiiilfl  V.  Ofrdensbnrfrh,  riaytr.n  &  Rome  R.  R.  Co..  1.')  N.  Y.  3.37; 
B9  Am.  Dee.  000. 

83  Naplee  V.  Lyman,  14  Cal.  4.VI;  Roliinson  v.  Smitli,   Id.  U~>. 


§§    lOUi-1018  FOKMS    OF    COMi'LAlXTS.  GOG 

S  1016.  Form  of  bill.     Tlie  following  written  order  possesses 

all  the  requisites  of  an  inland  bill  of  exehange:    "  Mr , 

I'leaiie  pay  the  bearer  of  these  lines dollars,  and 

charge  the  same  to  my  account.'"^'*  The  following  docume]it 
is  a  negotiable  bill  of  exehange:  "July  15,  18G5.  On  first  of 
August  next,  please  pay  to  A.,  or  order,  GOO  pounds,  on  account 
of  moneys  advanced  to  me  by  the  S.  Company.  To  Mr.  \\., 
Ofiicial  Liquidator  of  the  Company."^^  The  words  "  or  order," 
*'  or  bearer,"  in  notes,  bills  or  checks,  are  words  of  negotiability, 
and  the  use  of  either  of  them  makes  the  paper  negotiable,  al- 
though impersonal  words  are  used  in  naming  a  payee.^^  The 
insertion  of  the  word  "  please  "  does  not  alter  the  character  of 
the  instrument.'*'  "Value  received"  is  not  necessary  to  show 
a  consideration.^® 

§  1017.  Satisfaction  of  demand.  A  bill  of  exchange  operates 
only  as  a  conditional  payment,  but  if  the  creditor  fails  to  present 
it  for  payment  to  the  drawee,  it  becomes  pro  tanto  a  satisfaction 
of  the  demand. ^^ 

§  1018.  "Who  may  recover.  A  bill  indorsed  to  the  treasurer 
of  the  United  States  may  be  sued  and  declared  on  in  the  name 
of  the  United  States,  and  the  averment  that  it  w^as  indorsed  to 
them  immediately  is  good.^^  Where  the  complaint  stated  the 
bill  drawn  on  "B.  &  Co.,  and  to  have  been  accepted  by  B.  by 
the  name  and  style  of  B.  &  Co.,  by  waiting  the  name  of  B.  & 
Co.,  the  plaintiff  may  recover.'*^ 

34  Wlieatley  v.  Strobe,  12  Cal.  92;  7.3  Am.  Dec.  ,522. 

35  Griffin  v.  Weatherby,  L.  R.,  3  Q.  B.  753. 

3«  Mechanics'  Banlt  v.  Straiten,  5  Abb.  Pr.  (N.  S.)  11;  and  see 
Shaw  V.  Smith,  1,50  Mass.  IGG;  Peltier  v.  Babillion,  4.5  Mich.  384; 
Howard  v.  Palmer,  (>4  Me.  86.  By  statiite.  in  Colorado,  all  promis- 
soiy  notes  and  instruments  in  writing  for  tlie  payment  of  money 
are  nesrotiable.  whether  so  expressed  or  not.  Cowan  v.  Hallack.  9 
Col.  .572. 

37  Wlieatley  v.  Strobe.  12  Cal.  92;  73  Am.  Dec.  522, 

3«  Benjamin  v.  Tillman,  2  McLean,  213. 

39  Brown  v.  Cronise,  21  Cal.  386. 

40  United  States  v.  Barlver,  1  Paine  (U.  S.),  1,56. 

41  City  Bank  of  Columbus  v.  Beach,  1  Blatchf.  438;  compare 
Lapeyre  v.  Gales,  2  Cranch  C.  C.  291. 


607  BILLS    OF    EXCHANGE.  §§  1019,  1030 

§  1019.  The  same  —  on  a  bill  payable  to  drawer's  own  order, 
and  not  negotiated. 

Form  iVo.  259. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of   ,  18 .  . ,  at 

,  the  plaintiffs  [under  their  iirm  name  of  A.  B. 

C.  &  Co.],  by  their  bill  of  exchange,  required  the  defendant  to 

pay  to  the  order  of  the  plaintiffs dollars, 

days  after  date  thereof  [or  otherwise].  A  copy  of  which  said 
bill  of  exchange  is  hereto  attached  and  made  part  of  this  com- 
plaint. 

II.  That  on  the day  of ,  18.  .,  the 

defendant  accepted  the  bill. 

III.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

S   1020.   The  same  —  bill  returned  and  taken  up. 
For})i  A^o.   260. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of  ,  18.  .,  at 

,  the  plaintiff,  by  his  bill  of  exchange,  required  the 

defendant  to  pay  to  one  A.  B dollars, 

days  after  the  date  thereof.  A  copy  of  which  bill  of  exchange 
and  the  acceptance  thereon  indorsed,  is  hereto  attached  and 
made  part  of  this  complaint. 

II.  That  on  the   day  of   ,  18..,  at 

,  the  defendants,  upon  sight  thereof,  accepted  the 

same  for  value  received. 

III.  That  at  maturity  tlie  same  was  presented  for  payment, 
but  was  not  paid. 

IV.  That  on  the day  of ,  18.  .,  the 

same  was  returned  to  the  plaintiff  fur  iioiiitayiiicnt,  and  the 
y)laintifF,  as  drawer  thereof,  was  then  aud  tliere  compelU'd  1o 
take  up  the  same  and  to  pay  to  the  holder  thereof  the  sum  of 
dollars,  being  the  amount  of  said  bill,  with  dam- 
age? and  interest. 

V.  That  no  part  of  tlie  same  has  been  repaid. 

[Demand  of  Judgment.] 


!<^    Hl'Jl-l(>-.>i  FOKMS    OF    COMI'LAINTS.  OOS 

Co 

S  1021.  Payable  to  third  persons.  \Vhon  the  drawer  sues  on 
a  bill  payalilo  to  a  third  person,  it  is  necessary  to  state  that  it 
was  dishonored,  taken  up,  and  paid  by  the  plaintift'.^^ 

§  1022.  Sufficient  averment.  A  e()nii)laint  against  the  drawees 
of  a  bill,  alleging  that  they  had  refused  to  accept,  and  that  they 
had  a  settlement  of  accounts  with  the  drawers,  and  that  on  .such 
settlement  the  drawers  had  in  their  hands  sufficient  money  to 
pay  tlie  bill,  which  they  had  agreed  to  pay,  is  sufficient.'*^ 

§  1023.   By  acceptor,  without  funds,  against  drawer. 

For»i  No.  261. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of   ,  18 .  .,  at 

,  the  defendant  became  indebted  to  him  for  money 

advanced  by  him,  and  paid  by  him,  upon  a  certain  draft  drawn 

by  the  defendant,  bearing  date  on  the day  of , 

18.  .,  whereby  the  defendant  requested  the  plaintiff   

days  after  date,  to  pay  to  one  A.  B.  the  sum  of 

dollars. 

II.  That  on  the   day  of ,  18 .  . ,  at 

,  the  plaintiff  accepted  said  draft,  and  paid  it. 

[Or.  11.  That  the  plaintiff  accepted  said  draft,  and  paid  the 
same  at  maturity.] 

III.  That  at  the  time  of  the  acceptance  and  payment  of  said 
draft,  the  plaintiff  was  without  funds  of  the  defendant  in  his 
hands  to  meet  the  same. 

IV.  That  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

§  1024.  The  same  —  by  a  copartnership  firm  against  another 
firm,  on  a  draft  accepted  and  paid  by  plaintiffs. 
Form  No.  262. 
[Title.] 
The  plaintiffs  complain,  and  allege: 

I.  That  on  the day  of ,  18 .  . ,  the 

defendants,  then  composing  the  firm  of  C.  D.  &  Co.,  drew  their 
rertain  bill  of  exchange,  in  said  copartnership  name,  at , 

42  2  Chit.  PI.  148. 

«  Mittenbeyer  v.  Atwood,  18  How.  Pr.  330. 


609  BILLS  OF  EXCHANGE.  §§   1025-10:27 

and  directed  the  same  to  tlie  plaiutiti's  at  ,  who 

then  were  and  now  are  coj^artners,  doing  business  under  tlie 
firm  name  of  A.  B.  &  Co.,  by  which  bill  of  exchange  the  said 
defendants  requested  the  plaiutifls  to  pay  to  the  order  of  said 

defendants,  four  months  after  date,  the  sum  of   

dollars,  for  value  received. 

II.  That  said  bill  of  exchange  the  plaintiffs  afterwards  ac- 
cepted and  paid  in  full. 

III.  That  no  funds  were  provided  by  said  defendants,  either 
before  or  after  the  same  was  drawn  as  aforesaid  for  the  payment 
thereof,  and  the  plaintiffs  have  had  no  funds  of  said  defendants 
at  any  time  in  their  hands  to  pay  the  same. 

[Demand  of  Judgment.] 

§  1025.   Payee  against  drawer,  for  nonacceptauce. 
Form  No.  263. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18.  .,  at 

,  the  defendant,  by  his  bill  of  exchange,  required 

one  C.  D.  to  pay  to  the  plaintiff" dollars  [ 

days  after  sight]. 

II.  That  on  the   day  of   ,18.  .,  the 

same  was  duly  presented  to  the  said  C.  D.  for  acceptance,  but 
was  not  accepted. 

III.  That  due  notice  thereof  was  given  to  the  defendant. 

IV.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

J  1026.    Allegation  setting  out  copy  of  bill. 
Form  No.  264. 

That  on  the day  of 18 .  . ,  at 

,  the  defendants  maflo  and  delivered  to  the  plaintiff 

their  hill  of  excliange,  of  which  the  following  is  a  copy  [copy 
of  bill]. 

H  1027.   Allegation  of  demand  and  notice  excused  by  waiver. 

Form  No.   265. 
That  the  defendant  at  the  time  paid  bill  wn<5  frnnsrprrefl  by 

him,  waived  as  well  the  presentation  of  llio  same  to  sni<l   

for  pn^^npnt.  as  notice  of  fho  nnnpnyrnont  llieroof. 

Vol.  1—77 


§§    1028-1031  I'OllMS   OF   COMPLAINTS.  610 

§     1028.     Allegation     of     excuse     for     uonpresentment  —  bill 
ooiUitermauded. 

,  Form  No.  266. 
That  ou  or  about  the day  of ,  18.  ., 

said  bill  not  then  having  been  presented  for  acceptance  [or  for 
payment],  the  defendant  countermanded  the  same  by  instrac- 
tions  to  the  said  [drawee]  not  to  accept  or  pay  [or,  if  payable 
at  sight,  not  to  pay]  the  ^ame:  wherefore  it  was  not  presented. 

§    1029.   Allegation   of    excuse   for   nonpresentment  —  drawee 
not  found. 

Form  No.  267. 
That  on  the,  etc.,  due  search  and  inquiry  was  made  for  said 

at   [state  the  place  of  address],  that  the  same 

might  be  presented  for  acceptance,  but  he  could  not  be  found, 
and  the  same  was  not  accepted. 

§  1030.  Averment  of  protest.  The  said  bill  was  duly  protested 
at  maturity,  is  sufficient  to  admit  evidence  of  demand,  neglect 
to  pay,  and  notice  of  nonpayment.^'*  The  holder  of  a  bill, 
upon  protest  for  nonacceptance,  has  an  immediate  cause  of.  ac- 
tion against  the  drawer,  and  averments  of  demand  of  payment 
and  protest  might  be  rejected  if  the  declaration  counted  prop- 
erly for  nonacceptance.'** 

§1031.  Necessary  averments.  In  a  complaint  against  the 
drawer  of  a  bank  check,  or  of  a  bill  of  exchange  properly  so 
called,  it  is  necessary  to  aver  either  demand,  and  notice  to  the 
drawer  of  nonpayment,  or  such  facts  as  excuse  demand,  and 
notice,  e.  g.,  want  of  funds  at  bank.^^ 

44  Woodbury  v.  Sacknder.  2  Abb.  Vr,  40.5.  When  a  complaint 
alleges  that  a  bill  was  protested  for  nonpayment,  it  will  be  assumed 
that  all  steps  necessaiT  to  fix  the  drawer's  liability  were  taken. 
Wards  v.  Sparks,  .'i.'i  Ark.  .519. 

45  Mason  v.  Franklin,  3  .Johns.  202. 

4*5  Shultz  V.  Dupny.  .3  Abb.  Tr.  252;  see  Offutt  v.  Rucker,  2  Ind. 
App.  3.50.  It  is  held  that  failure  to  allege  protest,  in  an  action  on 
a  bill,  is  only  an  obiectlon  of  form,  and  can  not  be  reached  by 
general  demurrer.     Hart  v.  Otis,  41  111.  App.  131. 


611  BILLS    OF    EXCHANGE.  §§    1032,    1033 

§  1032.   The  same  —  form  of  allegation  where  bill  was  payable 
at  a  specific  date. 

Form  No.  268. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of  ,  18 .  . ,  at 

,  the  defendant  made  and  delivered  to  the  plaintiff 

his  bill  of  exchange,  directed  to  E.  F.,  and  required  said  E.  F. 

to  pay  to  the  plaintiff dollars  on  the day 

of ,  18. .  [or  at  sight,  or days  after  date 

thereof,  or  after  sight  thereof],  for  value  received. 

II.  That  the  same  was  presented  to  E.  F.  for  payment,  but 
was  not  paid. 

III.  [If  a  foreign  bill.]  That  the  same  was  duly  protested 
for  nonpayment. 

IV.  That  notice  thereof  was  given  to  the  defendant. 

V.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

§  1033.   By  partners  payees  against  partners  acceptors. 

Form  No.   26g. 

[Title.] 

A.  B.  and  C.  D.,  the  plaintiffs  in  the  above-entitled  action, 
complain  of  E.  F.  and  G.  H.,  the  defendants,  and  allege: 

I.  Tliat  at  the  times  hereinafter  mentioned,  the  said  plain- 
tiffs were  partners,  doing  business  at ,  under  the 

firm  name  of  "A.  B.  &  Co.,"  and  the  said  defendants  were 

partners,  doing  business  at ,  under  the  firm  name  of 

"  E.  F.  &  Co." 

IT.  That  on  the day  of  ,  18.  .,  at 

,  L.  !M.  and  N.  0.,  partners,  doing  business  under 

the  firm  name  of  ''  L.  M.  &  Co.,"  under  their  said  firm  name 
made  their  certain  bill  of  exchange  in  writing,  payal)le  in  gold 
coin  of  the  United  States,  directed  In  llic  dciVndants,  under 
their  said  firm  name  of  "  E.  F.  &  Co.,"  l)earing  date  on  ihat 
day,  in  the  words  and  figures  following,  to-wit  [copy  of  bill]. 

III.  That  on  the day  of ,  1 S .  . ,  at 

,  the  said  defendants,  under  their  said  firm  name 

of  "E.  F.  &  Co.,"  upon  sight  thereof,  accepted  said  bill  of 
exchange. 

IV.  Tbnt  tboy  have  not  paid  the  same,  nor  iiiiy  part  thereof. 

[Demand  of  Judgment.] 


§§    103l-10;?9  FORMS    OF    COMPLAIXTS.  613 

§  1034.  Acceptance.  It  is  uot  iioct'ssary  to  copy  the  accept- 
ance, nor  even  to  aver  that  it  was  in  writing.  Jt  is  enougli  to 
aver  its  acceptance*'  Where  a  draft  is  accepted  conditionally 
to  be  [laid  upon  the  happening  of  a  contingency,  the  question 
whether  it  has  ha})pened  is  a  question  of  fact.""* 

§  1035.  Copy  of  bill.  Tlie  liolder  must  sue  on  that  one  of 
the  set  which  was  dishonored."*'-*  Where  a  second  of  exchange 
was  dishonored,  and  the  first  was  subsequently  paid  previous 
to  suit  brought,  the  drawer  was  released  from  damages  for  the 
dishonor.^** 

§  1036.  Drafts  on  appropriation.  A  draft  payable  in  terms 
out  of  an  "  appropriation,"  for  work  done  by  the  acceptor,  be- 
comes due  on  payment  for  the  work  by  government.^^ 

§  1037.  Gold  coin.  Under  the  statute  of  California,  if  the 
written  instrument  provided  for  payment  in  gold  coin,  the  com- 
plaint and  demand  for  Judgment  should  be  for  gold  coin,  and 
judgment  will  thereupon  be  entered  up  accordingly. 

§  1038.  Nonacceptance,  effect  of.  The  wants  of  acceptance  af- 
fects the  right  of  the  payee  only  as  to  his  mode  of  enforcing 
payment. ^^ 

§  1039.  Notice.  Notice  may  be  given  to  the  indorser  or 
others  entitled  to  notice  immediately  after  presentment  to  the 
maker  or  acceptor,  and  the  refusal  of  the  same  to  pay.^^  Any 
notice  is  sufficient,  if  it  informs  the  party  of  the  fact.^^ 

47  Horner  v.  Wood,  15  Barb.  371;  Bank  of  Lowville  v.  Edwards, 
11  How.  Pr.  216;  Fowler  v.  New  York  Indeni.  Ins.  Co.,  23  Barb. 
1.50;  Gibbs  v.  Nash,  4  id.  449;  Washburn  v.  Fi-anklin,  28  id.  27;  7 
Abb.  Pr.  8;  but  see  dicta,  contra,  Thurman  v.  Stevens,  2  Duer,  609; 
Le  Roy  v.  Shaw,  id.  628;  Morwin  v.  Hamilton,  6  Id.  248;  as  the  ac- 
ceptance of  a  bill  of  exchange  must  be  in  writing.  Civil  Code  Cal., 
§§  3193,  3194;  Whoatley  v.  Strobe,  12  Cal.  92;  see  Joyce  v.  Wing 
Yet  Lung,  87  id.  424.  Acceptance  need  not  be  in  writing  unless  so 
required  by  .statute.  .Tarvis  v.  Wilson,  46  Conn.  90;  33  Am.  Rep. 
18;  Hall  v.  Flanders,  83  Me.  242. 

48  Xagle  V.  Homer,  8  Cal.  3.^3. 

49  DowDes  V.  Cliurch,  13  Pet.  20.5;  Wells  v.  Whitehead,  15  Wend. 
527. 

50  Page.  Bacon  &  Co.  v.  Warner,  4  Cal.  39.5. 

51  Xagle  V.  Homer,  8  Cal.  3,53. 

52  Wheatley  v.  Strobe,  12  Cal.  92;  73  Am.  Dec.  522. 

53  McFarland  v.  Pico,  8  Cal.  626. 

54  Id.;  see  Minturn  v.  Fisher,  7  Cal.  573. 


613  BILLS    OF    EXCHANGE.  §§    104:0-1043 

§  1040.  Part  payment.  ^Vlien  the  drawee  pays  a  part  of  the 
draft,  and  receipts  on  the  back  of  the  order  the  amount  paid, 
and  it  is  signed  by  the  payee,  it  is  not  an  acceptanee.^^  It  is 
evidence  that  the  drawee  owed  that  amount  and  paid  it.^^  The 
acceptance  of  a  note  of  a  third  party  by  the  creditor  is  accom- 
panied with  the  condition  that  the  note  shall  be  paid  at  matur- 
ity.^^ 

§  1041.  Presentment.  In  an  action  against  the  maker  of  a 
note  or  the  acceptor  of  a  bill  of  exchange,  in  which  the  place 
of  payment  is  fixed,  it  is  not  necessary  to  aver  presentment  at 
that  place  and  refusal  to  pay.^^ 

§  1042.   Payee  against  acceptor  —  short  form. 
form  No.   2/0. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of    ,   18 .  . ,  the 

defendant  accepted  a  bill  of  exchange  made  [or  purporting  to 

have  been  made]  by  one  C.  U.,  on  the day  of , 

18.  .,  at ,  requiring  the  defendant  to  pay  to  the 

plaintiff dollars, after  sight  thereof. 

A  copy  of  said  bill  of  exchange  is  hereto  attached,  marked  "A," 
and  made  part  of  this  complaint. 

II.  That  he  has  not  paid  the  same. 

[Demand  of  Judgment.] 

§  1043.   Allegation  setting  out  copy  of  bill. 
Form  No.   271. 

That  on  the   day  of    18..,,  at 

,  the  defendant  A.  B.  accepted  and  delivered  to 

the  plaintiff  a  bill  of  exchange,  of  which  the  following  is  a  copy. 
[Copy  bill  and   acceptance.]^^ 

M  Rassott  V.  Haines,  9  Cal.  200. 

6«  Id. 

57  Griffith  V.  rjropan.  12  Cal.  317. 

M  MontponiPry  v.  Tntt.  11  Cal.  .307.  Caso  in  wliioh  tho  ovidenre 
Bliows  snflifient  dilifrcnfo  in  ])resentins  draft  for  paymonl.  r.rown 
V.  Olmsted.  .'0  Cal.  ir,2;  see  Collins  v.  Xaylor.  10  Pliila.  A'M\  Cox 
V.  N'afional  Bank.  IfK)  TT.  S.  704;  Brown  v.  .Tonos.  12.')  Ind.  .'?7."t;  21 
Am.  St.  Rep.  227. 

60  Andrews  v.  .\stor  B;iiilc,  2  Dncr.  (;2t^):  Levy  v.  Ley.  f.  Abb.  Pr. 
89.  In  an  action  npon  a  bill  of  exflianco  drawn  by  the  defendant, 
payable  to  his  own  order  and  Indorsed  by  him  to  the  plaintiffs, 


§§    lOli-lOlS  I'OinilS    01''    COMPLAINTS.  G14 

§  1044.  Corporation.  A\'liero  dereiulanl  is  a  eorporatiou,  and 
IJie  bill  is  at'Lopk'cl  by  the  presiilont  tlieroui'  as  suchj  aa  avenuent 
that  he  waa  president,  and  a^s  aueh  authorized  to  aeccpt,  is  not 
uecessary.'^'^ 

§  1045.  Costs  of  protest.  A  claim  for  statutory  damages  and 
costs  oi'  protest  need  not  be  set  forth  in  the  petition  as  a  sepa- 
rate and  distinct  cause  of  action,  disconnected  from  the  claim 
on  the  bill.*'! 

§  1046.   The  same  —  pleading  the  legal  effect. 
Form  No.  2^2. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of    ,   18.  .,  at 

,  one  A.  B.,  by  his  bill  of  exchange  in  writing, 

dated  on  that  day,  required  the  defendants  to  pay  to  the  order 

of  the  plaintilf dollars, days  after 

said  date  [or  otherwise],  for  value  received. 

II.  That  on  the   day  of   ,  18.  .,  at 

,  the  defendant,  upon  sight  thereof,  accepted  said 

bill,  of  which,  and  the  acceptance  thereof,  the  following  is  a 
copy  [copy  the  bill]. 

III.  That  he  has  not  paid  the  same,  or  any  part  thereof. 

[Demand  op  Judgment.] 

§  1047.  Consideration  on  acceptance.  A  written  agreement 
to  accept  amounts  to  an  acceptance,  and  no  consideration  need 
be  shown. ^^ 

§  1048.  Party  in  interest.  In  an  action  on  a  draft,  brought 
by  the  Camden  Bank  against  the  drawer,  after  showing  that 
the  draft  was  made  payable  "to  the  order  of  W.  B.  Storm. 
cashier,"  an  averment  that  the  defendant  "delivered  the  said 
draft  to  W.  B.  Storm,  cashier  of  said  Camden  Bank,  for  the 
said  bank,"  and  that  "the  said  draft  is  now  hold  and  owned  by 

the  acceptance  is  not  the  foundation  of  the  action,  and  llio  copy 
thereof  filed  with  the  complaint  can  not  control  its  averments. 
Brown  v.  Jones,  12.5  Ind.  .37.5;  21  Am.  St.  Rep.  227. 

sorartridse  v.  Radjjer,  2.5  Barb.  146;  Andrew-s  v.  Astor  Bank.  2 
Duer,  629;  Price  v.  McClave,  6  id.  544.  Acceptance  by  corporation. 
See  Credit  Co.  v.  ITowe  Machine  Co.,  54  Conn.  ,3.57;  1  Am.  St.  Rep. 
12.3;  Ilaprer  v.  Rice,  4  Col.  90. 

61  Summit  County  Bank  v.  Smith,  1  Handy,  575. 

«2  Ontario  Bank  v.  Worthington,  12  Wend.  593, 


Glo  BILLS    OF    EXCHANGE.  §§    1049-1053 

the  said  plaintiffs,  and  still  remains  due  to  them  from  the  de- 
fendants," sufficiently  shows  that  the  bank,  and  not  the  cashier, 
is  the  real  party  in  interest.^^ 

§  1049.  Presentment.  Against  the  acceptor,  it  is  not  neces- 
sary to  aver  or  prove  presentment  at  the  place  wliere  the  bill 
was  made  payable.^'* 

§  1050.  Promise  to  accept.  In  an  action  brought  upon  a 
promise  made  by  the  defendant  to  accept  a  draft  which  another 
might  draw  on  him,  it  is  not  necessary  to  aver  that  the  promise 
Avas  in  writing.^^ 

§  1051.  The  same  —  acceptance  varying  as  to  time  from  the 
bill. 

Form  No.  27$. 

[Title.] 

I.  [Allege  making  of  bill  as  in  preceding  form.] 

II.  That  on  the   day  of   ,  18. .,  at 

,  the  defendant   [or  the  defendants  under  their 

firm  name],  upon  sight  thereof,  accepted  the  same,  payable  at 

days  [or  otherwise]  after  the  date  of  said  bill 

[or  after  said  day  of  acceptance].  A  copy  of  which  said  bill, 
and  the  acceptance  thereof,  is  hereto  attached  and  made  part 
of  this  complaint. 

III.  That  he  has  [they  liave]  not  ])aid  the  same,  nor  any 
part  thereof. 

[Demand  of  Judgment.] 

S  1052.  Where  drawer  is  also  acceptor,  on  bill  drawn  on  him- 
self. 

Form  No.   274. 
[TiTLi:.] 
The  plaintiff  complains,  and  alleges: 

T.  That  on  the   day  of   IS .  . ,  at 

the  defcii(l;iiil  iiimlc  niid  accepter],  and  dclivTiMl 

C-  ranidcii  P.Miik  v.  i;o(lj;ers,  4  How.  T'r.  W.*,. 

f.^  Wolfolt  V.  Van  Sjintvoord,  17  .Ii.lins.  LMM;  S  Am.  Deo.  ?X)(\:  Cald- 
well V.  Cassldy,  H  Cnw.  271 :  H.-ixton  v.  r.islHip. :'.  W(n<l.  \^\  seo  §  1041. 

autc 

"S  Wakrriclil  V.  rirppulH.od.  L'O  f"al.  ."!I7:  r.;iiil<  of  Lnwvillc  v.  i:(l- 
w.'irds.  11  How.  I'r,  L'li;:  ^^■llilll^n  v.  Mffcliaiits',  o\c..  I?ank.  CA  Ala. 
1;  .''.H  Am.  \W\\.  1.  .\ii  action  \\\tu\\  a  promisp  to  ar'fi'pt  ran  lie 
maintained  only  by  tin-  iia.rty  to  wliom  tl)p  i)romisc  is  made. 
Henrietta  Nat.  I'.ank  v.  State  Nat.  Hank.  Hi>  Tex.  MH;  20  Am.  St. 
Rep.  773. 


§^  lOoj,  1001  i'OK.Ms  OF  co.Mi'LAiN  rs.  616 

to  the  i»laiiitill',  his  bill  of  exchange  in  writing,  of  which  the 
I'oUowing  is  a  copy  |copy  of  the  l)ill  and  acee])tanee  |. 
11.  Tliat  he  has  not  paid  the  same,  nc»i-  any  part  thereof. 
[Demand  of  Judumknt.J 

§  1053.   By  assignee  of  a  bill  payable  out  of  a  particular  fund. 

Form  A^o.  27S- 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of  ,  18.  .,  at 

,  one  A.  i).  made  his  bill  of  exchange  or  order  in 

writing,  dated  on  that  day,  and  directed  it  to  the  defendant,  and 
thereby  required  the  defendant  to  pay  to  one  C.  D.,  out  of  the 

proceeds  of   [state  fund  as  in  the  bill]    dollars 

: days  after  the  date  thereof,  and  delivered  it  to 

said  C.  D. 

II.  That  on  the    day  of    ,   18.  .,  at 

,  upon  sight  thereof,  the  defendant  accepted  the 

same,  payable,  when  in  funds,  from  the  proceeds  ol  [etc.,  as 
in  acceptance] . 

III.  That  on  the   day  of   ,  18 .  . ,  at 

,  said  C.  D.  assigned  said  bill  to  this  plaintiff.     The 

following  is  a  copy  of  said  bill  of  exchange,  and  of  the  said 
acceptance  and  assignment  thereof  [copy  same]. 

lA^  That  on  the    day  of    ,   18.  ., 

the  defendant  had  funds  of  the  said  A.  B.,  proceeds  of,  etc. 

V.  That  on  the day  of ,  18 .  . ,  at 

,  tlie  plaintiff  demanded   payment  thereof  from 

the  defendant. 

YI.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  1054.  Allegation  that  defendant  accepted.  An  acceptance  gen- 
erally without  words  of  restriction  to  a  fnnd  or  contingency, 
will  in  some  cases  bind  the  acceptor  absolutely."'' 

fi'^  Atkinson  v.  :\Ianks,  1  Cow.  HOI;  Maber  v.  Mnssias.  2  W.  Rlackst. 
1072;  Lent  v.  Hodiiman.  !.">  Barb.  274.  ronditional  acceptance. 
Seo  Brown  v.  .Tones,  11.*^  Ind.  40;  ?,  Am.  St.  Rop.  r)2P>;  Taylor  v. 
Newman,  77  Mo.  2.>7;  Iluphos  v.  Fishor,  10  Col.  .''.S^.  Can  be  en- 
forced only  on  averment  and  proof  that  the  condition  has  been 
performed.    Shackelford  v.  Hooker,  54  Miss.  716. 


617  BILLS    OF    EXCHAXGE.  §§    1055,    1056 

§   1055.   Payee   against   drawer  and   acceptor  —  on   a  bill   ac- 
cepted by  the  drawee. 

Form  iVo.  2/6. 

[Title.] 
Tlie  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of  ,  18 .  . ,  at 

,  the  defendant  A.  B.,  by  his  bill  of  exchange, 

required  one  C.  D.  to  pay  to  the  plaintiff' dollars, 

days  after  the  date  thereof  [or  othenvise]. 

II.  That  on  the    day   of    ,   18.., 

the  defendant  C.  D.,  upon  sight  thereof,  accepted  said  bill. 
The  following  is  a  copy  of  said  bill  and  of  said  acceptance  [in- 
sert copy]. 

III.  That  at  maturity  the  same  was  presented  to  the  defend- 
ant C.  D.  for  payment,  but  was  not  paid. 

IV.  That  notice  thereof  was  given  to  the  defendant  A.  B. 

V.  That  no  part  of  the  same  has  been  paid. 

[Demand  of  Judgmext.] 

§  1056.   By  payee,  on  a  bill  accepted  for  honor. 
Form  No.   277. 

[Title.] 

The  plaintiff  complains,  and  alleges:  ' 

I.  That  on  the day  of ,  18 .  . ,  the 

defendant  A.  B.,  by  his  bill  of  exchange,  required  one  C.  D.  to 

pay  to  the  plaintiff  dollars   days 

after  the  date  thereof  [or  otherwise].  The  following  is  a  copy 
of  the  said  bill  of  exchange,  and  of  all  acceptances  thereon 
[insert  copy  of  same]. 

IT.  That  on  the day  of IS.  .,  the 

same  was  prcsentc^l  to  the  said  C.  D.  for  acceptance.  l)ut  was  not 
accepted. 

III.  That  notice  thereof  was  given  to  the  defendant  A.  B. 

lY.  That  on  the day  of 18.  .,  at 

,  the  defendant  E.  V.  [acccjitor  for  honor],  unon 

sight  thereof,  accepted  said  bill  for  tbc  honor  of  said  A.  r>. 

V.  That  at  maturity  the  same  was  presented  for  payment  1o 
said  f.  D.,  but  was  not  paid. 

VT.  That  notice  thereof  was  given  to  the  defendant    A.  P.. 

TIT.  That  thereupon  the  same  was  dnly  presented  to  tbo 
defendant  E.  E.  [acceptor  for  honor],  for  payment,  but  was 
not  paid. 

78 


§§  1057-1059  roKMS  of  comi'laints.  018 

Mil.  That  notice  thorcol"  was  given  to  the  defendant  A.  B. 
IX.  That  no  part  of  the  same  lias  been  paid. 
[Demand  of  Judgment.] 

§  1057.  Accommodation  acceptor.  The  accommodation  accep- 
ioi'  who  pays  without  funds  can  recover  from  the  drawer,  not 
upon  tlie  bill,  but  for  money  paid. 


C7 


§  1058.  Presentment  at  maturity.  In  a  complaint  against  ac- 
ceptor for  honor,  the  plaintiff  must  show  that  the  bill  was  pre- 
sented at  maturity  to  the  drawee,  and  that  the  drawer  had  iiotice 
of  nonpayment.^^  It  is  not  necessary  to  aver  that  the  demand 
was  made  of  the  maker  at  the  place  specified  in  the  note,  in  a 
complaint  under  the  Code.  Such  a  demand  was,  by  authority, 
settled  to  be  a  condition  precedent  under  the  late  practice,  and 
the  averment  essential  to  a  recovery.  But  section  533  of  the 
Code  of  Civil  Procedure  (New  York)  has  dispensed  with  the 
necessity  of  pleading  the  facts  which  constitute  the  perform- 
ance of  a  condition  precedent.*'^ 

§  1059.   By  indorsee  —  first  indorsee  against  acceptor. 
Fonn  No.   278. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the  .  .• day  of ,  18 .  . ,  the 

defendant  accepted  a  bill  of  exchange,  made  by  one  A.  B.,  on 
the day  of ,  18 .  . ,  at ,  re- 
quiring the  defendant  to  pay  to  the  order  of  one  CD., 

dollars after  sight  thereof,  of  which  the  following  is 

a  copy  [insert  copy]. 

II.  That  the  said  C.  D.  indorsed  the  same  to  the  plaintiff. 

III.  That  defendant  has  not  paid  the  same. 

[Demaxd  of  Judgment.] 

«57  Griffith  V.  Reed,  21  Wend.  .502;  34  Am.  Deo.  2A7;  Suydam  v. 
Wostfall,  4  Hill,  211. 

f'S  Williams  v.  Germaine,  7  Barn.  <S:  Cress.  4r>,S;  Sohofield  v.  Bayard, 
3  Wend.  488. 

69  Gay  V.  Paine,  .5  How.  Pr.  107;  Woodbury  v.  Sacl<rider,  2  Abb. 
Pr.  402;  to  the  contrary,  Graham  v.  Maohado,  0  Duer,  .51.5.  The  later 
f-ase  of  Femer  v.  Williams.  R7  Barb.  0.  follows  and  approves  Gay 
V.  Paine;  soe.  .ilso.  Caso  v.  Phoonix  Biidcro  Co..  2.3  Jonas  &  Sp.  25; 
Bogardus  v.  New  Yoi-k  Life  Ins.  Co.,  101  N.  Y.  328. 


619  BILLS    OF    EXCHANGE.  §§    1060,    1061 

§  1060.   First  indorsee  against  first  indorser. 
Form  No.   ^79. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  indorsed  to  the  plaintiff  a  bill  of  ex- 
change, made  by  one  A.  B.,  on  the day  of , 

18.  .,  at ,  requiring  one  C.  D.  to  pay  to  the  order 

of  the  defendant   dollars,   [days] 

after  sight  [or  after  date,  or  at  sight]  thereof,  and  accepted  by 

the  said  C.  D.  on  the day  of ,  18.  .,  at 

The  following  is  a  copy  of  said  bill  of  exchange, 

and  of  said  indorsement  and  acceptance  [insert  copy]. 

II.  That  on  the day  of ,  18.  .,  at 

,  the  same  was  presented  to  the  said , 

for  payment,  but  it  was  not  paid. 

III.  That  due  notice  thereof  was  given  to  the  defendant. 

IV.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgmekt.] 

§  1061.  First  indorsee  ag-ainst  drawer  and  in'dorser  —  for  non- 
acceptance. 

Form  No.   280. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of   ,  18.  .,  at 

,  the  defendant,  by  his  bill  of  exchange,  required 

one  C.  D.  to  pay  to  the  order  of  one  E.  F dollars 

days  after  the  date  thereof  [or  otherwise]. 

II.  That  the  said  A.  B.  then  and  there  delivered  the  same 
to  the  defendant  E.  F.,  who  Ihen  and  there  indorsed  it  to  tlie 
defendant  Ct.  IT. 

III.  That  on  tlio day  of 18.  . ,  at 

the  dofendani   0.  IT.  indorsed  the  same  lo  the 

plaintiff  for  value.  The  following  is  a  copy  of  said  bill  of  ex- 
change and  of  the  said  indorsement  thereon  [copy  bill  and  in- 
dorsements] . 

IV.  That  the  same  was  presented  to  C.  D.  for  acreptanoc, 
but  was  not  acceptod  [if  a  foreign  bill,  add,  and  was  tborr^ujion 
dulv  protf'stcd  for  iionaofcptancc].  of  all  wbicli  duo  notice  was 
given  to  the  defendants. 

V.  That  no  part  of  the  same  has  beon  paid. 

[DE^fAX^>  OF  .T[•|)r;^rI•^•T.]  "^^ 

70  For  antlinrlty  U\r  a  loncrfr  bnt  siniilnr  fonii.  rpo  Tlielps  v. 
Ferpuson,  0  Abb.  Pr.  200:  Grecnbury  v.  Wilkins,  Id.,  nntp. 


|§  106'2-10G4  rou.Ms  of  coMri.AiNTS.  620 

§  10G2.  Delivery.  Where  llie  plaiiitill',  as  indorsee  of  a  bill 
of  excliauge,  ^ued  the  acceptor,  declaring  under  the  statute  of 
New  York,  on  the  money  counts,  and  appending  a  copy  of  the 
bill,  with  notice  that  it  ^yas  his  cause  of  action;  but  in  the  copy 
his  indorsement  was  omitted,  it  was  held  that  delivery  was  suffi- 
ciently averred  by  implication,  that  indorsement  was  not  neces- 
sary to  pass  title,  and  that  the  bill  was,  therefore,  adniiosible, 
upon  tlio  trial  of  the  cause. "^ 

§  1063.  First  indorsee  against  all  prior  parties  —  for  non- 
payment. 

Form  No.  281. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18.  .,  at 

,  the  defendant  A.  B.,  by  his  bill  of  exchange,  re- 
quested C.  D.  to  pay  to  the  order  of  the  defendant  E.  F., 

dollars, days  after  the  date  thereof. 

II.  That  the  said  A.  B.  then  and  there  delivered  the  same 
to  the  said  E.  F.,  who  thereupon  indorsed  it  to  the  defendant 
G.  H. 

Ill    That  on  the   day  of   ,   18.., 

at ,  the  said  G.  H.  indorsed  the  same  to  the  plain- 
tiff for  value. 

IV.  That  on  the   day  of   ,  18.  .,  at 

,  the  defendant  0.   D.,   upon   sight  thereof    ac- 
cepted said  hill. 

V.  That  at  maturity  the  same  was  presented  to  the  defendant 
C.  D.  for  payment,  but  was  not  paid  [if  a  foreign  bill,  add,  and 
was  thereupon  duly  protested  for  nonpayment],  of  all  which 
due  notice  was  given  to  the  defendants  A.  B.,  E.  F.,  and  G.  II. 

VI.  That  no  part  of  the  same  has  been  paid. 

[Demand  of  Judgment.] 

?  1064.   Su"bsequent  indorsee  against  acceptor. 

Form   No.   282. 

[Title.] 
T.   [Allege  acceptance  of  hill,  as  in  form  No.  ?81.J 

IT.  That  bv  tlio  indorsement  of  said ,  the  same 

was  transferred  to  the  plaintiff  f^r  value. 

■71  rurdy  V.  Yermilya,  .«t  X.  Y.  ?.4(). 


621  BILLS    OF    EXCHANGE.  §§    10G5,    106G 

III.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

§   1065.   Subsequent  indorsee  against  fii-st   indorser  —  indorse- 
ment special. 

Form  No.   283. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  indorsed  lo  one  C.  D.  a  hill  of  ex- 
change, made  by  one  A.  B.,  on  the day  of , 

18. .,  at ,  requiring  E.  ¥.  to  pay  to  the  order  of 

the  defendant    dollars,    days  after 

sight  thereof  [or  otherwise],  and  accepted  by  the  said  E.  F.  on 
the day  of ,  18 .  . ,  at 

II.  That  the  same  was  by  the  indorsement  of  the  said  C.  D., 
transferred  to  the  plaintiff. 

III.  That  on  the  day  of   ,  18 .  .,  at 

,  the  same  was  presented  to  the  said  E.  F.  for 

payment,  but  it  was  not  paid. 

IV.  That  notice  thereof  was  given  to  the  defendant. 

V.  That  he  has  not  paid  the  same  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  1066.   Subsequent  indorsee  against  intermediate  indorser. 
Form  No.  284. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  a  bill  of  exchange  made  l)y  one  A.  B.  on  the 

day  of   ,  18..,  at    ,  requiring  one 

C.  D.  to  pay  to  the  nrrler  of  one  E.  F dollars, 

days   after   sight   thereof    [or   otherwise],    [ac- 

coptcfl  by  snifl  f.  D.  |.  and  indorsed  liv  ihc  said  E.  F.  to  the 
defendant,  was  by  Ibe  indorsement  of  ibo  dcfendnni  [and 
others],  transferred  to  ihe  plaintiff. 

[Allege  presentment,  notice,  and  nonpayment  as  in  form  No. 
283.] 

[Demand  of  Judgment.] 


^^    lOGT,  10G8  I'OKMS    OF    COMPLAINTS.  622 

§  1067.   Subsequent  indorsee  against  last  indorser. 

form  No.  ^83. 
[TlTLE.J 

TJie  })laintiir  ooinplaiiiyj  and  alleges: 

I.  That  the  clefendaut  iiulorsed  to  him  a  hill  of  exchange, 
made  [or  purporting  to  have  heeu  made  J  hy  one  A.  B.,  on  the 
day  of ,  18 .  . ,  at ,  requir- 
ing one  C.  JJ.  to  pay  to  the  order  of  one  E.  F 

dollars,  days  after  sight  thereof  [or  otherwise  J,  [ac- 
cepted by  the  said  C.  D.J,  and  indorsed  hy  the  said  E.  F.  to  the 
defendant. 

II.  Tliat  on  the day  of ,  18.  .,  at 

,  the  same  was  presented  to  the  said  C.  D.  for 

payment,  but  it  was  not  paid. 

III.  That  due  notice  thereof  was  given  to  the  defendant. 

IV.  That  he  has  not  paid  the  same  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  1068.  Subsequent  indorsee  against  all  prior  parties  —  short 
form. 

Form  No.   286. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of  ,  18 .  . ,  at 

,  the  defendant  A.  B.,  by  his  bill  of  exchange,  re- 
quired the  defendant  C.  D.  to  pay  to  the  order  of  the  defendant 

E.  F.,    dollars,    days  after  sight 

thereof. 

II.  That  on  the   day  of  ,  18.  .,  the 

said  C.  D.  accepted  the  same. 

III.  That  the  said  E.  F.  indorsed  the  same  to  the  plaintiff. 

IV.  That  on  the day  of ,  18.  . ,  the 

same  was  presented  to  the  said  C.  D.  for  payment,  but  was  not 
paid. 

V.  That  due  notice  thereof  was  given  to  the  other  defend- 
ants, and  each  of  them. 

VT.  That  they  have  not,  nor  has  either  of  them,  paid  the 
same. 

[Demand  of  Judgment.] 


623  BILLS   OF   EXCHAXGE.  §§    1069-1071 

§  1069.  The  same  by  a  bank  in  its  corporate  name. 

Form  No.  28j, 

[State  axd  Couxty.]  [Court.] 

The  Bank  of 

against 
A.  B.,  C.  D.,  and  E.  F. 

: J 

The  plaintiff,  a  corporation,  duly  organized  and  incorporated 

under  the  laws  of  the  state  of   complains,  and 

alleges  [allegation  same  as  in  last  form  J. 

[Demaxd  of  Judgmext.] 

§  1070.  Checks  —  payee  against  drawer. 

Form  No.  288. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  times  liereinafter  mentioned,  the  said  defend- 
ants were  partners,  doing  business  as  merchants  at , 

under  the  firm  name  of  C.  D.  &  Co. 

II.  That  on  the    day  of   ,  18..,  at 

,  the  defendants,  under  their  said  firm  name  of 

C.  D.  &  Co.,  made  their  cheek  in  writing,  dated  on  that  day, 
payable  to  the  order  of  the  plaintiff,  which  said  check  is  in  the 
words  and  figures  following,  to-wit   [copy  of  check  J. 

III.  That  the  said  check  was  presented  on  the day 

of ,  18 .  . ,  to  the  said ,  for  payment, 

but  was  not  paid. 

IV.  That  due  notice  thereof  was  given  to  the  defendants. 

V.  That  they  have  not  paid  the  same,  nor  any  part  tliercof. 

[Demaxd  of  Judgmext.] 

§  1071.  Checks  —  taking  after  dishonor  —  consideration. 
Checks  are  on  the  same  footing  as  l)ills  of  exchange,  excepting 
the  difference  which  may  arise  from  the  custom  of  moreliants.'^^ 
The  legal  presumption  is  that  a  check  is  drawn  for  money  due 
from  the  drawer."  A  pjirty  taking  a  elieek  after  present inoni 
and  dishonor  tnkes  it  sultjeet  \n  all  tlie  equities  to  which  it 
was  subject  in  the  linnds  of  the  oiiginal  holder.^"*     When  tlie 

72Mlntl)nm  v.  Flslier.  4  Pal.  P.'i. 

73  IToadley  v.  Reed.  2  f'lil.  .TJ2. 

74  Fuller  V.    TlntelilnKs,    10  CaL  5iJ3;   70   Am.    Dec.    74G;   but   see 
Chambers  v.  Satterlce.  40  CaJ.  .^>11. 


§§  107v-10T()  roinis  of  tOMiM.AiN'i's.  G24 

holder  of  a  note  accepts  a  dnii't  or  check  in  payment,  he  is  not 
bound  to  give  up  the  note  before  ])uynient  of  the  draft  or 
check.'^^  The  surrender  of  the  note  is  prima  facie  evidence  of 
its  payment.'^''  The  presumption  is  that  the  check  was  given 
on  a  valid  consideration,  but  this  presumption  being  rebutted, 
pUiintilf  must  prove  that  he  received  it  in  good  faith,  and  witli- 
out  notice  of  the  illegality  of  the  consideration."  A  check 
given  for  a  gaming  debt  is  void  in  the  hands  of  all  persons,  ex- 
cept a  bo}ia  fide  holder  without  notice.''^ 

§  1072.  Grace.     In  California  days  of  grace  are  not  allowed.'^ 

§  1073.  Lost  paper.  Where  a  check  has  been  lost  and  paid 
by  the  banker  upon  a  forged  indorsement,  in  a  suit  for  the  same, 
where  the  banker  refused  to  deliver  the  check  to  the  owner, 
in  the  absence  of  rebutting  testimony,  the  measure  of  damages 
is  the  full  amount  for  which  it  was  drawn.^ 

§  1074.  Nonnegotiable  draft.  A  nonnegotiable  draft,  ren- 
dered so  by  the  absence  of  any  fixed  amount,  may  be  rendered 

negotiable    by   an   indorsement,   "  balance    due    

dollars,"  and  signed  by  indorser,  who  is  estopped  thereby  from 
setting  up  against  it  any  antecedent  matter,  and  is  liable  for  the 
full  amount.^^  No  right  of  action  can  accrue  upon  a  draft  till 
payment.*^ 

§  1075.  Notice.  In  general,  presentment  and  notice  of  non- 
payment are  necessary  to  charge  the  drawer  of  a  check.^^ 

§  1076.  Presentment.  As  against  the  drawer,  presentment  at 
any  time  before  suit  brought  is  sufficient,  unless  it  appear  that 

75  Smith  V.  Harper,  5  Oal.  330. 

76  Id. 

77  Fuller  V.  Hutchings^  10  Cal.  523;  70  Am.  Dec.  746. 

78  Id. 

79  Civil  Code,  §  3181. 

80  Survey  v.  Wells,  Farpo  &  Co.,  5  Cal.  124. 

81  Garwood  v.  Simpson,  8  CaJ.  101. 

S2  Wakeman  v.  Vanderbilt,  3  Cal.  380. 

83Harker  v.  Anderson,  21  Wend.  323;  Shultz  v.  Dnpuy,  8  Abb.  Pr. 
2.")2;  but  compare  Cniger  v.  Armstrong,  3  .Tohns.  Cas.  4;  Conroy  v. 
Warren,  id.  259;  2  Am.  Dec.  l.W;  Culver  v.  Marks,  122  Ind.  5.%4:  17 
Am.  St.  Rep.  377;  Parker  v.  Keddick,  65  Miss.  242;  7  Am.  St.  Rep. 
647. 


625  BILLS    OF    EXCHANGE.  §§    1077-1U80 

he  has  been  prejudiced  by  unreasonable  tlelay.**^  By  the  law 
merchant,  it  is  sufficient  if  a  check  drawn  upon  one  day  be  pre- 
sented for  payment  in  the  usual  banking  liours  on  the  next 
succeeding  day.^^  The  payee,  to  hold  the  drawer,  is  bound  to 
use  reasonable  diligence.***^ 

§  1077.  Payment  stopped.  Where  the  complaint  alleged  de- 
mand, refusal,  and  notice  to  defendants  of  nonpayment,  and 
also  that  before  the  demand  the  defendant  had  stopped  its  pay- 
ment by  notice  to  the  officers  of  the  bank  not  to  pay  it,  and  the 
answer  denied  that  tlie  defendants  had  notice  of  the  nonpay- 
ment, and  alleged  that  they  stopped  its  payment  because  it  was 
obtained  from  them  by  fraud,  of  which,  as  well  as  of  its  payment 
having  been  stopped,  the  plaintiii's  had  notice  before  they  took 
the  check,  it  was  held  that  the  allegation  in  the  complaint,  of 
notice  to  the  defendants  of  nonpayment,  might  be  disregarded 
as  surplusage;  and  the  plaintiffs  should  be  allowed  to  prove, 
under  the  pleadings,  the  fact  that  payment  had  been  stopped. 
That  excused  the  want  of  notice.^'^ 

§  1078.  To  bearer.  A  check  payable  to  the  order  of  a  fic- 
titious person,  e.  g.,  of  a  firm  long  since  dissolved,***  or  "  to  the 
order  of  bills  payable,"*^  is  to  be  deemed  payable  to  bearer,  if 
negotiated  by  the  maker. 

§  1079.  When  due.  When  no  time  of  payment  is  mentioned, 
the  check  or  note  is  payable  immediately,  and  complaint  should 
not  state  a  time  of  payment.^^ 

§   1080.   Indorsee  or  bearer  of  check  against  drawer. 

Form  No.   2S9 

[Title.] 
The  plaintiff  complains,  and  alleges: 

T.  That  on  the    day  of   ,   18..,  at 

,  the  defenrlant  made  his  check  in  writing,  dated 


R4Littlo  V.  Plioenix  Rank.  2  Hill.  42."'>:  ITarbp<k  v.  (Yaft,  4  Diior. 
122 

MRitr-hle  v.  Rradshaw,  .'►  Cnl.  22H;  Holnirs  v.  Tt.i.-.  (-.2  Midi.  100; 
4  Am.  St.  Rep.  R^t-J:  rnrroll  v.  S\ve<'t.  128  N.  Y.  10;  Simpson  v.  lu- 
fliiranre  Co.,  44  Tnl.  IP.tt. 

««RltfliIe  V.  Rrailsliaw.  .",  Oal.  22S. 

«7  rurfliase  v.  >r!iHi.sf»n.  r,  Tmer,  .'»S7. 

««Stovons  V.  Stranc,  2  Sandf.  l.TS. 

"oWlllota  V.  Phoenix  Rank.  2  Dnor.  121. 

w^TTorrlfk  v.  Ronnott.  S  .Tolmw.  .^74:  TV-ar.siill  v.   Frazcr.  14  Rarb. 
r>Cr\;  Tliompson  v.  Ketoham.  S  .Tolins.  lRf>. 
Vol.  T— 79 


§§  lOSl-1083  Fon.Ms  of  complaints.  G26 

on  tliat  day,  aud  diroctctl  llic  same  to  the  bank  of  A.  B.,  re- 
quiriug  said  bank  to  pay  to  one  C.  D.,  or  order  [or  bearerj, 
dollars  for  yalue  received. 

II.  That  the  defendant  then  and  there  indorsed  the  same  to 
this  plaintitl". 

III.  That  on  the   day  of   ,  18.  .,  at 

,  the  same  was  presented  to  said  bank  of  A.  B.  for 

payment,  but  was  not  paid. 

IV.  That  due  notice  thereof  was  given  to  the  defendant. 

V.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  1081.    Allegation  of  excuse  for  failure  to  give  notice 
Form  No.   2go. 

That  on  the day  of ,  18.  .,  the  same 

v/as  presented  to  said  [drawee]  for  payment,  but  the  defendant 
had  no  funds  with  said  drawee. 

§  1082.  Allegation  of  excuse  —  want  of  funds.  Want  of 
funds  in  the  drawee's  hands  excuses  the  omission  to  give  notice 
of  nonpayment.^^  But  where  it  is  intended  to  rely  upon  want 
of  fiinds  as  excusing  demand  or  notice,  that  fact  must  be 
averred.^^ 

§  1083.   AJlegation  of  excuse  from  insolvency  of  drawee. 
Form  No.  sgi. 

That  on  the day  of ,  18 .  . ,  at '. , 

said  [drawee]  was  insolvent  [or  had  stopped  payment]  .°^ 

91  As  to  whether  it  excuses  noniH-esontment.  see  Crujjor  v.  Arm- 
.stronjr.  ?.  .Tchns.  Cas.  .5;  2  Am.  Deo.  120:  3  .Tohns.  Gas.  2.5il;  2  Am. 
Deo.  !.")():  Fitch  v.  Reddinjr,  4  Sandf.  l.SO;  Franklin  v.  Vandci-pool, 
1  Hall,  &S;  Bnish  v.  Bai-rett,  82  N.  Y.  401;  37  Am.  Rep.  .569;  Fletcher 
V.  Pierson,  09  Ind.  281;  35  Am.  Rep.  214. 

92Shultz  V.  Dupuy,  3  Abb.  Pr.  252;  Gai-vey  v.  Fowler,  4  Sandf. 
605;  Franklin  v.  Vanderpool,  1  HaJl,  78.  In  an  action  by  the  holder 
of  a  check  a^iain-st  tlie  drawer,  when  payment  has  l^een  refused 
on  demand,  the  complaint  need  not  alleue  that  tlie  drawer  has  no 
fimds  in  Imnk,  nor  is  the  complaint  defective  l>ecause  it  fails  to 
allege  notice  of  the  dishonor  of  the  check,  where  it  does  not  appear 
that  the  di"awer  was  injured  by  the  failiu'e  to  give  notice.  Offutt 
V.  Rucker,  2  Ind.  App.  3.50. 

93  As  against  di-awer,  the  drawee's  insolvency  is  sufficient  to  dis- 
pense with  presentment  and  notice.  Ix>vett  v.  Cornwell.  6  Wend. 
369;  Warrensbnrgh,  etc..  Build.  Assoc,  v.  Zoll,  83  Mo.  94;  Madderom 
V.  Manufacturing  Co.,  3.5  111.  App.  588. 


G27  BILLS  OF  EXCHANGE.  §§    1084-1086 

§  1084.  Time.  The  time  should  be  stated  that  it  may  appear 
whether  it  was  such  as  to  excuse  the  holders  from  a  demand.^* 
One  who  takes  a  check  which  by  its  date  appears  to  have  been 
outstanding  for  two  years  and  a  half,  and  which  has  "  Mem." 
written  on  its  face,  must  bear  the  loss  arising  from  his  taking 
it  without  inquiry.^^ 

§  1085.   Indorsee  or  beaxer,  against  drawer  and  indorser. 
Form  No.  2^2. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day   of    ,   18..,   at 

,  the  defendant  A.  B.  made  his  check,  and  di- 
rected the  same  to  the  bank  of  C.  D.,  and  thereby  required  said 
C.  D.  to  pay  to  the  defendant  E.  F.,  or  order  [or  bearer], 

dollars  for  value  received,  and  delivered  it  to  the 

defendant  E.  F. 

II.  That  thereupon  said  defendant  E.  F.  indorsed  the  same 
to  this  plaintiff  for  value. 

ITT.  That  said  check  was  duly  presented  for  pa\Tnent,  but  was 
not  paid. 

IV.  That  due  notice  thereof  was  given  +o  the  defendants. 

V.  That  they  have  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  1086.    Aguinst  bank,  drawee  having-  certified. 
Form   No.   293. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  a  corporation,  created  by  and  under 
the  laws  of  this  state,  organijced  pursuant  to  an  act  of  the 
legislature  entitled  "  An  act  to  authorize  the  business  of  bank- 
ing," passed ,  and  the  acts  amending  the  same. 

TT.  That  on  the    day  of   18..,  at 

,  one  A.  P>.  made  his  check,  and  directed  it  t-o  the 

dofen^lnnts,  and  thereby  required  tliom  to  pay  this  plaintiff,  or 

order  [or  bearer] dollars,  for  vnlne  received;  and 

delivered  the  same  to  this  plaintiff  [or,  if  payable  to  third  party, 
ptate  accordingly]. 

OM  Chit.  PI.  2.«n. 

0'  Sklllnian  v.  Tit\is.  ?,2  N.  .T.  L.  OG;  Bee  Turnbull  v.  Osborne,  12 
Abb.  Pr.  (N.  S.)  200. 


§§    1087,  1U8S  FOKMS    OF    COiU'LAliNTS.  G28 

III.  That  on  llie    day  oT    ,  18.  .,  at 

,  the    doi'eiulanl,    by    its   agent    duly    authorized 

thereto,  in  writing,  accepted  and  certified  the  same  to  be  good. 

IV.  That  thereafter  tlie  same  was  duly  presented  for  pay- 
ment, but  no  part  thereof  was  paid. 

[Demand  of  Judgment.] 

§  1087.  Raised  check  certified.  A  bank,  by  certifying  a  check 
in  the  usual  form,  simply  aHirnis  the  genuineness  of  the  signa- 
ture of  the  drawer,  and  that  it  has  funds  sufficient  to  meet  it, 
and  engages  that  they  will  not  be  withdrawn  to  the  prejudice 
of  the  holder  of  the  check,  but  does  not  warrant  the  genuineness 
of  the  body  of  the  check.'^^  Where  a  raised  check  had  been 
certified  and  afterwards  paid,  the  bank  certifying  and  paying 
could  recover  back  as  for  money  paid  by  mistake.^'^ 

§  1088.  Certified  check.  The  certifying  of  a  check  as 
"  good  "  transfers  the  sum  drawn  for  to  the  holder,  and  imports 
a  promise  to  pay  to  him  on  demand.  But  the  drawee  can  not 
set  off  a  claim  on  the  holder  against  the  amount  so  transferred, 
and  the  maker  of  the  check  is  not  discharged.^^  Where  a  check 
dated  January  10,  186G,  was  certified  by  the  assistant  cashier 
of  defendant's  bank,  and  w^as  indorsed  to  W.,  December  1,  1865; 
^larch  7,  1866,  the  check  was  deposited  with  the  plaintiff,  who 
credited  W.  with  the  amount  on  their  books;  and  the  drawer 
of  the  check  had  not  funds  with  defendants  to  meet  it,  either 
when  it  was  certified,  or  when  it  was  presented,  it  was  held 
that  W.,  as  he  took  a  postdated  check,  had  notice  that  the  cashier 
was  exceeding  his  authority  in  certifying  it,  and  that  plaintiffs 
took  subject  to  the  equities  against  W.^^ 

96  Mai-ine  National  Bank  v.  The  National  City  Bank.  .59  N.  T.  67; 
17  Am.  Rep.  305;  Clews  v.  Bank  of  New  York,  89  N.  Y.  418;  42 
Am.  Rep.  303. 

97  Marine  National  Bank  v.  The  National  City  Bank.  59  N.  Y.  67; 
17  Am.  Rep.  .305;  and  Security  Bank  v.  National  Bank,  67  N.  Y. 
4.58;  23  Am.  Rep.  120. 

e«  Brown  v.  Leekie,  43  111.  497;  Bickford  v.  First  National  Bank 
of  Chicago,  42  id.  238;  89  Am.  Dec.  436;  Rounds  v.  Smith,  42  111. 
245. 

99  Clark  Nat.  Bank  v.  Bank  of  Albion,  .52  Barb.  592.  As  to  an- 
thority  of  bank  ofiieers  to  accept  and  certify,  see  Willets  v.  Phoenix 
Bank.  2  Dnor,  121;  Farmers'  Bank  v.  Butchers  &  Drovers'  Bank. 
4  id.  219;  Claflin  v.  Farmers  &  Citizens'  Bank,  25  N.  Y.  293;  S.  C, 
24  How.  Pr.  1;  Cooke  v.  Stnte  Nat.  Bank,  .52  N.  Y.  97;  11  Am.  Rep. 
667;  Lpp  v.  Smith.  84  Mo.  304;  .54  Am.  Rep.  101;  Hill  V.  Nat.  Trust 
Cx>..  108  Penn.  St.  1;  .56  Am.  Rep.  189. 


CHAPTER   III. 

ON  PROMISSORY  NOTES  AND  CERTIFICATES  OF  DEPOSIT. 

§  1089.   Maker  of  accommodation  note,  having  paid  it. 
Form  No.  294. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That   on   the    day   of    ,   18..,   at 

,  the  plaintiff  made  his  promissory  note,  of  which 

the  following  is  a  copy  [copy  of  note]. 

II.  That  the  plaintiff  never  received  any  consideration  there- 
for, but  that  it  was  an  accommodation  note,  made  and  given  to 
the  defendant,  at  hi.s  request,  and  upon  his  promise  that  he 
would  pay  it  at  maturity. 

III.  That  as  the  plaintiff  is  informed  and  believes,  the  de- 
fendant thereafter  and  before  its  maturity  negotiated  it  for 
value. 

IV.  That  the  defendant  failed  to  pay  the  same  at  maturity, 
and  the  plaintiff  paid  it. 

V.  That  defendant  has  not  repaid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

5  1090.  Accommodation  maker  as  plaintiff.  An  accommoda- 
tion maker  or  indorser  is  a  surety  and  may  sue  as  such  to  re>- 
cover  payments  made  by  him.-'  If  the  accommodation  maker 
was  sued,  the  allegation  may  state  that  "the  plaintiff  was  there- 
upon compelled,  by  suit  brought  against  him  by  A.  B.,  the 
hnhlor.  in  the court. "^ 

5  1091.  Coupons.  Interest  coupons  to  railroarl  bonds,  payable 
to  bearer  nt  n  specified  time  and  place,  are  negotiable  promises 

1  P..nkpr  V.  :\Tnrtin.  .",  P.nrI).  C,?A:  \eass  v.  ^rprfor.  1.'  id.  ?,^9..  For 
a  form  of  frimjilaint  by  ar<'<MiinKKlntlnn  innkcr.  seo  Osffond  v. 
Whittolspv.  10  AM..  Vr.  1.^4. 

2  ra^karfl  v.  TTill,  7  Cnw.  142.  And  may  rcrovpr  flio  rosis  of  suit. 
Rakor  v.  Martin.  ?,  Barb.  C,?A\  hut  see  Holmes  v.  Weed,  24  Id.  .546, 
which  limits  it  to  costs  of  default. 


§§    Ui;f>;-1094  FORMS    OF    COMPLAINTS.  630 

for  the  pavinont  of  money,  and  are  subject  to  the  same  rules 
as  other  negotiable  instruments.  Tliey  are  transferable  by  de- 
livery, although  detached  from  the  Ijonds,  and  a  purchaser  in 
good  faith,  before  maturity,  from  one  who  has  stolen  them,  ac- 
quires a  valid  title.^ 

§  1092.  Contingent  order.  A  contingent  order  is  not  negoti- 
able.^ 

§  1093.  Consideration.  A  complaint  upon  a  promissory  note 
need  not  aver  that  it  was  given  for  a  consideration.^  Section 
3104  of  the  Civil  Code  of  California  is  as  as  follows:  "  The 
signature  of  every  drawer,  acceptor,  and  indorser  of  a  negotiable 
instrument  is  presumed  to  have  been  made  for  a  valuable  con- 
sideration, before  the  maturity  of  the  instrument,  and  in  the 
ordinary  course  of  business."  One  who  adds  his  signature  to 
a  promissory  note  as  a  maker,  after  its  execution  and  delivery 
to  the  payee,  without  any  agreement  for  extension  of  credit 
or  forbearance,  or  other  new  consideration,  is  not  liable  thereon.® 
But  where  a  loan  is  made  upon  the  consideration  that  the  bor- 
row-er  will  execute  a  note  and  procure  the  signature  of  another 
person  to  it  as  a  joint  maker,  with  the  understanding  that  the 
note  shall  not  be  considered  as  delivered  until  signed  by  such 
other  person,  and  his  signature  is  procured  several  days  after- 
wards, W'hereupon  the  note  is  delivered  as  a  complete  instru- 
ment to  the  payee,  the  party  so  adding  his  signature  is  bound 
by  the  note  without  the  necessity  of  a  new  consideration,  not- 
withstanding he  had  no  prior  knowledge  or  agreement  respecting 
the  loan  previously  made.'^  Setting  out  in  the  complaint  the 
note  sued  on  is  a  sufficient  allegation  of  consideration,  w^here 
the  note  recites  that  it  was  given  for  ''valuable  consideration."^ 

§  1094.  Date.  A  negotiable  instrument  may  he  with  or  with- 
out date,  and  with  or  without  designation  of  the  time  or  place 
of  payment.^     Any  date  may  be  inserted  by  the  maker  of  a 

SEvertson  v.  Nat.  Bank,  m  N.  Y.  14;  23  Am.  Rop.  9. 

4  Konny  v.  Hinds.  44  How.  Pr.  7. 

^  Pinney  v.  Kinjr,  21  Minn.  .^)14;  Poirlor  v.  Gravel.  Sft  Cal.  79. 

"Lovorone  v.  TTildreth,  SO  Cal.  139. 

7  Winders  v.  Rporry.  90  Cal.  194;  and  see  TTarriniiton  v.  Brown, 
77  N.  Y.  72:  ^frXancrht  v.  IMoClaushiT,  42  id.  22:  1  Am.  Pep.  4."^7. 

8  Mt.  >rorris  Bank  v.  Lawson,  27  N.  Y.  Supp.  272:  see.  also,  Petrce 
r.  Fieldor,  3  Ind.  App.  127;  Elmquist  v.  Markoe,  39  Minn.  494. 

!)  C^l.  Civil  Code,  §  3091. 


631  PROmSSOKY   XOTES,   ETC.  §§    1095-1097 

negotiable  instrument,  whether  past,  present,  ur  future,  and  the 
instrument  is  not  invalidated  by  his  death  or  incapacity  at 
the  time  of  the  nominal  date.^*^ 

§  1095.  Filling  blanks.  One  who  makes  himself  a  party  to 
an  instrument  intended  to  be  negotiable,  but  which  is  left  wholly 
or  partly  in  blank,  for  the  purpose  of  filling  aftei'\\'ards,  is  liable 
on  the  instrument  to  an  indorser  thereof  in  due  course,  in 
whatever  manner  and  at  whatever  time  it  may  be  filled,  so  long 
as  it  remains  negotiable  in  fonn.^^ 

§  1096.  Joint  maker  of  a  note,liaving  paid  it,  against  tlie  other, 
for  contribution. 

Form  No.   zg^. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18..,   at 

,  this  plaintiff  and  the  defendant  made  their  joint 

[or  joint  and  several]  promissory  note  in  writing,  of  wliich  the 
following  is  a  copy  [copy  note]. 

II.  That  at  the  maturity  of  said  note,  the  plaintiff  was  com- 
pelled to  pay,  and  did  pay,  the  same. 

III.  That  no  part  thereof  has  been  repaid  to  him. 

[Demand  of  Judgment.] 

5  1097.   By  indorser  of  note,  having  paid  a  part. 
Form  No.   2g6. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of  ,  18.  .,  at 

,  the  defendant  made  his  promissory  note,  whereby 

he  promised  to  pay  to  the  order  of  the  plaintiff, 

days  after  date,  the  sum  of dollars,  for  value  re- 
ceived [or  copy  the  note].     ' 

II.  That  thereafter,  and  before  the  maturity  of  snid  note,  the 
plaintiff  indorsed  it  and  negotiated  it  for  value. 

TIT.  That  at  the  maturity  it  was  presented  for  payment  to 
the  defendant  [or  allege  exoiiso  for  nonpre=entment],  but  wao 
not  ))aid,  whereof  the  plnintifT  had  duo  notice. 

10  If!.,  §  P.fKH.  A  bill  or  note  takos  <(T<'ff.  n<>t  frfun  tho  day  on 
whlfli  it  la  dated  or  fi-mpd.  Imf.  from  llif  dny  on  wliifh  It  is  do- 
llverpd.  ronr.-ul  v.  Zin/io,  10.'.  Ind.  281;  King  v.  Fleming.  72  111. 
21:  22  Am.  Pop.  l.''.!. 

"  Cal.  Civil  Code.  §  8125. 


§§    10i^8-ll()0  l-OUMS    OF    CO.MI'LAINTS.  (i^]^ 

IV.  Thai  on  tlio    day   ol    ,   18.  .,  at 

,  the  phiiiitiir  paid  Lo  one  A.  Ji.,  tlie  holder  thereof, 

the  t^uiu  of dolkirs,  the  amouut  due  on  said  note. 

\'.  That  no  part  thereof  has  been  repaid  to  the  plaintiil. 
[Demand  of  Judgment.] 

5  1098.  Accommodation  indorsers,  cosureties.  In  an  action  by 
an  indorser  of  a  promissory  note,  who  has  paid  the  same,  against 
a  prior  indorser,  it  is  competent  for  defendant  to  prove  l)y  parol 
that  all  the  indorsers  were  accommodation  indorsers,  and  by 
agreement  they  were,  as  between  themselves,  cosureties.^^ 

§  1099.  Legal  owner.  Where  an  indorser  has  paid  the  whole 
of  a  note,  and  become  the  legal  owner  of  it,  he  may  sue  directly 
on  the  note.^^  But  where  he  paid  only  a  part,  he  must  sue 
for  the  amount  actiially  paid,  as  for  money  paid  to  the  use  of 
the  drawer  or  first  indorser.^'*  But  separate  prior  indorsers 
can  not  be  joined  as  defendants  in  such  an  action.^^ 

§  1100.   Payee  against  maker. 

Form  No.  297. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of  ,  18.  .,  at 

,  the  defendant  made  and  delivered  to  the  plain- 
tiff his  promissory  note,  of  which  the  following  is  a  copy  [set 
out  copy  of  note]. 

II.  That  he  has  not  paid  the  same   [except   

dollars,  paid  on  the day  of ,  18 .  . ].^® 

[Demand  of  Judgment.] 

12  Easterly  v.  Barber,  fiO  N.  Y.  4.S.3. 

13  Baker  v.  Martin,  3  Barb,  fi.34;  Wricht  v.  Butlor.  r>  Wend.  200. 
i4Wriffht  V.  But'nr,  C  Wend.   2.S4:  21  Am.   Dec.  32,3;  Pownal  v. 

Ferrand,  f>  Barn.  &  Cress.  4.30;  Dygort  v.  Gross.  9  Barb.  506. 

1^  Barker  v.  Cassidy.  IG  Barb.  177. 

ifi  It  is  adways  advisable  in  pleading  under  a  Code  to  set  out  the 
instrument  sued  upon  in  the  body  of  the  complaint,  as  thereby  any 
mistake  as  to  the  legal  effect  of  the  instrument  will  be  avoided, 
and  besides  it  will  then  not  be  necessary  to  prove  the  exp<'ution 
of  the  instrument,  unless  the  execution  is  specifically  denied  under 
oath.  The  followinfr  allegation,  however,  is  cood.  and  mav  be  sub- 
stituted for  the  first  paracraph  in  tlie  above  form;    T.  That  on  the 

day  of   IS..,   at    the   defendant   made 

and  rlelivered  to  the  plaintiff  liis  promissory-  note  of  that  date,  and 

thereby  promise  to  pay  to  the  idaintiff,   or  his  order,  in    

davs  after  date,  the  sura  of dollars. 


633  PKOMISSORY  NOTES,  ETC.      §§  llUi,  110^ 

§  1101.  Certificate  of  deposit.  A  certificate  of  deposit  is  on 
the  same  footing  as  a  promissory  note.^"  It  changes  the  char- 
acter of  the  maimer  from  a  custodian  of  the  funds  to  that  of  a 
debtor;^^  and  the  brokers  become  liable  to  pay  to  the  holder  of 
the  certificate  on  its  presentation.^^  In  an  action  by  an  in- 
dorsee on  a  certificate  of  deposit,  presentation  and  demand  must 
be  alleged  in  the  complaint.^" 

§  1102.  Consideration.  In  a  complaint  on  a  promissory  note 
it  is  not  necessary  tliat  a  consideration  should  be  specially  al- 
leged. If  there  is  no  consideration,  the  defendant  should  set 
up  the  want  of  it  as  a  defense.^^  Every  note  imports  considera- 
tion.^ An  oral  promise  to  convey  land,  in  accordance  with 
which  the  land  is  subsequently  conveyed,  is  a  sufficient  con- 
sideration for  a  promissory  note.^  A  covenant  to  convey  is  a 
good  consideration  for  note  for  purchase  money,  although  the 
payee  of  the  note  who  had  given  the  bond  of  conveyance  had 
not  the  legal  title,  and  could  not  convey  it  when  the  note  be- 
came payaljle.^  P>ut  paying  part  of  a  note  when  all  is  due  is 
no  consideration  for  an  agreement  to  extend  the  time  of  pay- 
ment.^' Though  the  holder  of  a  promissory  note  which  proves 
to  be  void  may  in  a  proper  case  recover  on  the  consideration  for 
which  the  note  was  intended  to  be  given,  he  can  not  do  so  unless 
the  pleading  set  out  such  consideration.^^  Where  an  agree- 
ment of  sale  of  personal  property  was  signed  by  the  purchaser 

i7Welton  v.  Adams.  4  Cal.  37;  60  Am.  Doc.  oT9:  I{nnnina2;im  v. 
Tallant.  29  Cal.  o()3\  81  Am.  Dec.  61;  see.  also,  Curran  v.  Witter,  68 
Wis.  16;  00  Am.  Kep.  827;  Citizens'  Xat.  Bank  v.  Brown,  4".  Ohio 
St.  39;  4  Am.  St.  Rep.  .-)2G;  Mitchell  v.  Easton,  37  Minn.  3.3.5. 

iSNajjlee  v.  Palmer,  7  Cal.  .>43. 

19  McMillan  v.  Richards,  0  Cal.  .3n.">;  70  Am.  Dec.  <;.-..".;  see  Civil 
Code,  §  309.5. 

20  Bellows  Falls  Bank  v.  Rutland  County  Bank,  40  \  t.  377. 

21  Winter.*;  v.  Rush.  34  Cnl.  136;  see  §  188,  ante:  Flint  v.  Philips, 
16  Orefr.  4.37;  Carnwright  v.  Cray,  127  N.  Y.  92;  24  Am.  St.  Rep. 
424;  Perley  v.  Perley,  144  Ma.ss.  104;  Andrews  v.  Ilayden,  88  Ky. 
4.5.5. 

22  Bank  of  Troy  v.  'I'oppiiiL',  1.';  ^^■|•Il(l.  ">~:  Coslion  'I'ni'npikc  Co. 
T.  Ifurtin,  9  .Tolins.  '_M7;  C  .\in.  Dec.  27.".:  I'riiHlJc  v.  Caruthers,  1.5  N. 
Y.  42.5. 

23  Kratz  V.  Stocke,  42  Mo.  3.51. 

2«  Holy   V.   Rliodes.  2  Cnmch   ('.   C.   24.5;    Lane's  Adm'r  v.    Dyer, 
Id.  349. 
2SIJpnlnjr  v.  Could.  13  Cal.  .598. 
26  Wayman  v.  Torreyson,  4  Nev.  124. 

80 


§§  llOo,  110-i      FORMS  OF  COMPLAINTS.  634 

oiilv.  who  gave  his  note  for  tlie  price,  it  might  be  inferred  from 
tiie  e'vitlonfC  oi"  perrorniauee  du  seller's  part  so  as  to  constitute 
a  consideration  for  the  note.-*^  As  the  statute  makes  a  promis- 
sory note  prima  facie  evidence  of  indebtedness,  though  no  con- 
sideration be  expressed,^^  it  is  not  necessary  to  add  an  averment 
that  the  defendant  is  indebted.^® 

§  1103.  Copy  of  note.  A  complaint  against  a  maker  is  suffi- 
cient where  it  sets  fortli  a  copy  of  the  note,  and  alleges  that  a 
specified  sum  is  due  thereon  from  defendant  to  plaintiff,  al- 
though the  note  is  by  its  terms  payal)lc  to  a  third  person,  and 
there  is  no  allegation  of  an  indorsement  by  him.^ 

§  1104.  Date  —  variance.  It  is  of  no  consequence  whether  the 
date  of  a  promissory  note  be  at  the  beginning  or  end  of  it.^^ 
But  as  a  variance  would  be  immaterial,^^  the  plaintiff  may 
transfer  the  allegation  of  time  and  place  into  one  of  date,  thus: 

That  the  defendant,  by  his  promissory  note,  dated  on , 

at ,  promised,  etc.     A  variance  of  one  month  in 

the  time  of  a  note  described,  was  disregarded  as  immaterial,  the 
defendant  not  having  been  misled. ^^  Where  no  time  of  pay- 
ment is  named,  the  note  is  due  immediately,^^  and  interest  runs 

27  Weightman  v.  Calclvv-ell,  4  Wheat.  85. 

28  Stewart  v.  Street,  10  Cal.  372. 

29  Connecticut  Bank  v.  Smith,  9  Al>b.  Pr.  1G8. 

30  Prindle  v.  CariUhers.  15  N.  Y.  425;  Oontinental  Bank  v.  Bram- 
hall,  10  Bosw.  595;  Kaynor  v.  Hoagland,  39  N.  Y.  S.  C.  11;  Smith 
V.  Waite,  103  Cal.  372;  Scott  v.  Esterbrooks,  (5  S.  Dak.  253; 
Watson  r.  Barr,  37  S.  C.  463;  and  see  .7 aqua  v.  AVoodbury,  3 
Ind.  App.  289;  Gish  v.  Gish,  7  id.  704;  Behrens  v.  Dignawity,  4  Tex. 
Civ.  App.  201;  Alexander  v.  McDow,  108  Cal.  25.  But  a  complaint 
simply  alleging  that  the  action  is  on  an  instrument  for  the  pay- 
ment of  money  only,  of  which  a  copy  is  given,  but  nol  alleging  the 
making  of  the  instrument  by  the  defendant,  is  held  bad  on  de- 
murrer. Vogle  V.  Kirley,  4  N.  Y.  Supp.  99;  and  see  Broome  v. 
Taylor,  13  Hun,  341. 

31  Sheppard  v.  Graves,  14  How.  (U.  S.)  505. 

32  Bentzing  v.  Scott,  4  CaiT.  &  P.  24. 

33  Trowbridge  v.  Didier,  4  Duer,  448.  Setting  out  mistake  in  date 
of  note,  see  Ahvich  v.  Downey,  45  Minn.  4G0.  An  antedated  note 
may  be  alleged  to  have  been  made  on  the  day  of  its  date.  Denick  v. 
Hubbard,  .30  Hun,  188.  Amendment  changing  date  of  note  sued 
on.    See  Drake  v.  Found  Treasure  :Min.  Co.,  .53  Fed.  Rep.  474. 

34  Tliompson  v.  Ketcham,  8  .Tohns.  189;  Gaylord  v.  Van  Loan,  15 
Wend,  308;  G  Barb.  0G2;  Bell  v.  Sackett,  38  Cal.  407. 


635  PROMISSORY    NOTES,    ETC.  §§    1105,   llU'i 

from  date  and  without  demand.     Uii  such  a  uote  a  count  stat- 
ing no  time  of  payment  is  good.^^ 

§  1105.  Delivery.  It  is  not  necessary  to  add  an  averment 
of  deliveiy  wliere  the  plaintiti'  is  the  payee.  "  j\Iade  "  imports 
delivery.^^     Indorsement  likewise  imports  delivery. 

§  1106.  Demand.  No  previous  demand  is  necessary  to  main- 
tain au  action  on  a  note  payable  on  demand.^^  The  action 
itself  is  a  sufficient  demand,  and  if  there  were  no  days  of  grace 
allowed,  the  note  would  be  payable  immediately  after  delivery.^ 
But  an  indorser  after  maturity  is  entitled  to  demand  and  notice 
of  nonpayment  before  he  is  liable  to  pay.^'-*  As  against  a  maker 
or  acceptor  of  a  note  drawn  paya])le  at  a  particular  bank  or 
place,  it  is  not  necessary  to  aver  that  a  demand  was  made  at 
place  specified.^*  But  with  the  indorser  the  rule  is  different." 
Where  a  note  is  payable  in  installments  due  at  different  times, 
and  demand  on  the  maker  is  not  made  till  the  last  installment 
falls  due,  and  then  demand  is  made  for  the  whole  amount,  the 
demand  is  good  for  the  purpose  of  charging  the  indorser  for 
the  last  installment.'*^ 

36  Herrlck  t.  Bennett.  8  .Johns.  .S74. 

36Cluirchill  V.  Oardnei-,  7  T.  R.  590:  Rnssell  v.  Whipple,  2  Cow. 
.530;  Prinflle  v.  CanUhers.  1.^  N.  Y.  42.");  Kcteltas  v.  Myers,  19  id. 
231;  Smith  v.  Waite.  103  Cal.  372.  Allegations  sufficiently  showing 
execution  and  delivery  of  note.  See  Lord  v.  Russell,  G4  Conn.  86; 
Elbrinf  v.  Mullen  (Idaho).  38  Pac.  Rep.  404. 

37  Ziel  V.  Duke<3,  12  Cal.  482;  Stoiy  on  Pi-om.  Notes,  §  29;  Wheeler 
V.  Warner,  47  N.  Y.  519;  7  Am.  Rop.  478. 

"■^  Bell  V.  Saekott,  38  Cal.  407. 
80  Bcebe  v.  Brooks,  12  Cal.  .308. 

40  Silver  t.  Henderson,  3  McLean.  10.";  Paysnn  v.  Wliitcomb,  15 
Pick.    212. 

41  T'nite<l  States  Rank  v.  Smith,  11  Wheat.  17L  Xorcssity  of  de- 
mand to  charpe  indorsf-r.  See  Conklinjr  v.  Candall.  1  Abb.  Ct.  App. 
42:?;  Parker  v.  Stroud.  98  X.  Y.  379;  .W  .\m.  Rep.  085;  Shutts  v. 
Flnpar,  100  N.  Y.  rCU:  ."3  .\m.  Rop.  23L  .\n  averment  in  a  com- 
plaint that  a  note,  at  tlio  instance  of  tlio  liohb-r,  "  was  dul,v  pre- 
sented for  payment,  and  i)ayiiifn1  fliereof  dfuianded.  and  rofusod." 
Is  held  sufflfient  to  rharj,'*'  nn  indorser.  altliousrh  it  df>€s  not  alieire 
that  the  presentment  was  1o  tlie  maker,  nor  that  it  was  at  tlie  jilace 
where  the  note  was  payable.  flxMnlcal  Nat.  Bank  v.  Carpentier, 
9  -Sbb.  N.  C.  .''.Ol. 

42  Eastman  v.  Turman,  24  Cal.  379. 


§§    1107-1110  rORMS   OF   COMrLAINTS.  636 

S  liOi.  Indorsement,  ii  a  person  who  is  not  a  paity  to  a 
promissory  note  indorse  liis  name  upon  it  in  blank;,  witli  intent 
19  give  it  eredit,  the  liolder  may  \vrit.e  over  it  an  engagement  to 
pay  it  iu  case  of  insolvency  of  the  maker,  and  if  such  insol- 
vency be  shown  no  allegation  of  demand  or  notice  is  necessary.**^ 
A  pai-ol  agreement  between  two  indorsers  at  the  time  of  in- 
dorsement, to  divide  the  loss  between  them  in  the  event  of 
nonpayment,  is  a  collateral  agi'eement,  founded  on  sulHcient 
consideration,  and  will  snpport  an  action.^^  Payment  of  a  note 
by  an  indorser  after  protest  is  a  good  consideration  for  an 
assumpsit  on  the  part  of  the  maker,  for  the  note,  with  cost  of 
protest.*** 

8  1108.  Execution.  The  general  rule  of  law  requiring  proof 
of  the  title  of  the  holders  of  a  note,  may  be  modified  by  a  rn-le 
of  court  dispensing  wdth  proof  of  the  execution  of  the  note, 
unless  the  party  shall  annex  to  his  plea  an  affidavit  that  the 
note  was  not  executed  by  him.'*® 

§  1109.  Foreign  coin  note.  Where  a  note  is  payable  in  for- 
eign coin,  the  value  of  such  coin  must  be  averred.'*''^ 

§  1110.  Forms  of  notes.  A  written  promise  to  pay  to  "A. 
B.,"  witliout  adding  "  or  order/'  or  "  or  bearer,''  is  a  promissory 
note  within  the  statute;*^  but  is  not  negotiable  under  the  Civil 
Code  of  California.  An  instrument  in  the  following  form: 
"Troy,  August  4,  1840.  I  hereby  agree  to  pay  Miss  A.  Y. 
twenty  dollars  per  month  during  her  natural  life,  for  her  atten- 
tion to  my  son  J.  S.  M.  [Signed]  B.  M."  —  is  not  a  promissory 
note.**  Such  an  instrument  expresses  no  consideration,  since 
it  affords  no  presumption  that  the  services  referred  to  were 
rendered  in  pursuance  of  a  previous  request  of  the  promisor,  or 
that  they  were  beneficial  to  him.^°     On  a  promise  to  pay  "as 

43  0ffut  V.  Hall.  1  Cranch  C.  C.  504:  Id.  .572. 

44  Phillips  V.  Preston,  5  How.  (U.  S.)  278. 

45  Morgan  v.  Rointzell,  7  Cranch,  273. 

46  Mills  V.  Bank  of  United  States,  11  Wheat.  431;  see  Cal.  Code 
Civ.  Pro.,  §  447. 

47  United  States  v.  TIardyman,  13  Pet.  170;  see  §  3238.  Civil  Code. 
48Rurchell  v.  Slocock,  2  Ld.  Raym.  1.545;  Smith  v.  Kendall,  G  T. 

"R.  123:  Do-u-ninff  v.  Blarkenstoes.  3  Cai.   137;  Goshen  &  Minlsink 
Turni>ike  Co.  v.  TTurtin.  0  .Tolins.  217;  6  Am.  Dec.  273. 

49  Spear  v.  Downing,  12  Abb.  Pr.  4-37. 

Mid. 


(j37  PEOMISSORY    NOTES,    ETC.  §§    1111-lllci 

soon  as  able,"'  a  judgment  and  execution  ai'e  the  best  test  of 
defendant's  ability  to  pay.^^ 

§  1111.  Interest.  If  the  holder  of  a  promissory  note  fill  in 
the  rate  of  interest  left  blank  by  the  maker,  he  can  collect  only 
legal  interest;  but  an  innocent  holder  from  him  can  collect  only 
interest  as  filled  in.^^  Interest  need  not  be  averred.  It  can  be 
recovered  as  damages.^^  The  filling  of  a  blank  with  tlie  rate  of 
interest  does  not  thereby  vitiate  the  note.^*  If  the  original  note 
offered  in  evidence  contains  an  abbreviation  for  the  word  "  ad- 
ministratrix," and  specifies  the  rate  of  interest  in  figures  only, 
and  the  copy  in  the  complaint  gives  the  word  in  full,  and  states 
the  rate  of  interest  in  words  as  well  as  figures,  the  variance  is. 
immaterial.'^* 

§1112.  Pleading,  legal  effect.  A  note  may  be  set  out  ac- 
cording to  its  legal  effect.^®  The  difference  between  a  note  pay- 
able on  a  certain  day  and  one  payable  on  or  before  such  a  day 
is  material  when  described  according  to  its  legal  effect.^^  A 
complaint  pleading  a  note  according  to  its  legal  effect  must 
state  a  payee,  otherwise  it  seems  it  is  demurrable.*^* 

§  1113.  Liability  of  maker.  The  maker  is  bound  by  the 
contract  which  he  signs,  whatever  his  motive  or  purpose  in 
signing  it  may  be,  and  can  not  vary  the  legal  effect  of  his  obli- 
gation by  parol. ^^     A  promissory  note  is  neither  an  account, 

M  Ppfil  V.  Welsli,  2  Bush  (Ky).  108;  42  Am.  Dec.  481. 

B2Fishpr  v.  Dennis.  0  Cal.  .577;  G.'S  Am.  Dec.  534. 

53  Chinn  v.  Hamilton.  Hempst.  4?,R. 

M  Fisher  v.  Dennis.  ('►  Cal.  !'>77;  <"►.')  Am.  Doc.  .'>.34;  Visher  v.  Web- 
ster, 8  Oal.  lC)f):  seo  IIunii)lu-e.vs  v.  Craue.  ~t  id.  17.3;  see  ante.  Bills 
of  Exchanpre. 

w  Corcoran  v.  Doll,  .32  Tal.  82. 

66I)rako  V.  Fisher,  2  MfT-enn.  CD;  Si^auldin^'  v.  Evans,  id.  1.30; 
compare  Tumor's  Ex'rs  v.  White,  4  Cranoh  C.  O.  4W.  And  m  com- 
plaint which  states  the  material  substance  and  lepal  effect  of  the 
note,  showinjr  its  date,  consideration,  parties,  principal  sum,  and 
rate  of  interest,  and  the  amoimt  due  and  unpaid,  and  avers  that 
the  defendant  refuses  to  pay  the  same  or  any  part  thereof,  and 
that  the  i)lalntifr  is  still  fhe  owner  and  liolder  of  the  note,  is  not 
subject  to  a  (reneml  dcuniiTcr  on  the  prronnd  that  a  copy  of  the 
note  is  not  embodied  In  fhe  complaint.     Ward  v.  Clay,  82  Cal.  .502. 

BTKlklndal  v.  Mitchell.  2  McT,ean,  402. 

B«  White  V.  .Toy.  13  N.  Y.  8.3. 

BO  Aud  V.  Maicrudor.  10  Cal.  282. 


§§    111-1-1117  rORMS    OF    COMPLAINTS.  638 

uiiliciuidatt'tl  dcinand,  nor  a  tJiiug  in  actiou  not  aii&ing  out  of 
contract.*"^ 

§  1114.  Lost  paper.  In  case  of  the  loss  or  dostiniction  of 
negotiable  paper,  as  a  not.e  or  certificate  of  deposit,  the  plain- 
tiff can  not  maintain  an  action  without  first  indemnifying  the 
maker  against  all  future  claims  upon  it.'^^  And  no  distinction 
exists  between  a  note  destroyed  and  one  lost;  but  in  either  case 
a  bond  of  indemnity  need  not  be  tendered  or  filed  with  the 
complaint,  but  may  be  tendered  upon  the  trial.^^ 

§  1115.  Maturity.  It  is  not  necessary  to  show  that  the  note 
was  due  before  the  commencement  of  the  action,^  nor  that 
the  time  for  payment  has  elapsed.^^  An  allegation  that  a  note 
was  given  to  provide  for  payment  does  not  mean  a  present  pay- 
ment, bi;t  a  provision  for  a  future  payment.*^^ 

§  1116.  New  promise.  Where  a  creditor  sues  after  the  Stat- 
ute of  Limitations  has  run  upon  the  original  contract,  or  after 
a  discharge  in  insolvency,  his  cause  of  action  is  not  the  original 
contract,  but  the  new  promise;  and  in  such  case  the  new  prom- 
ise must  be  pleaded.^® 

§  1117.  Nonpayment.  In  a  complaint  upon  a  promissory 
note,  an  allegation  of  its  nonpayment  is  material,  and  if  omitted, 

60  Priest  v.  Bounds.  2.5  Cal.  188. 

61  Welton  V.  Adams,  4  Cal.  37;  60  Am.  Dec.  579;  Price  v.  Dunlap, 
5  Cal.  483. 

62  Randolph  v.  Harris,  28  Cal.  501;  87  Am.  Deo.  1,39;  but  see  Wriglit 
V.  Wrisclit,  54  N.  Y.  437.  Action  on  lost  instrument.  See  Mowery  v. 
Mast,  14  Neb.  510;  Adams  v.  Baker,  16  R.  I.  1;  27  Am.  St.  Rep.  721; 
O'Neil  V.  O'Neil,  123  111.  361. 

63  Smith  V.  Holmes,  19  N.  Y.  271;  Maynard  v.  Talcott.  11  Barb. 
569. 

6t  Peetg  v.  Bratt,  6  Barb.  662;  Maynard  v.  Taloott,  11  id.  ,569; 
Smith  V.  Holmes.  19  N.  Y.  271;  Keteltas  v.  Myers,  id.  231.  A  failure 
to  allej^e  that  the  note  is  due  is  immaterial,  if  the  note  is  made  an 
exhibit  and  shows  on  its  face  that  it  is  due.  Postel  v.  Oard,  1  Ind. 
App.  2.52;  Taylor  v.  Heara.  131  Tnd.  537.  Sufficient  allegation  of 
maturity  of  m.fe.     Stoddard  v.  Hill.  38  S.  C.  38.5. 

65  Bates  V.  Rosenl^rans,  23  How.  Pr.  98.  Amendment  of  com- 
plaint allegincr  the  time  when  the  note  sued  upon  is  payable.  See 
Tribune  Pub.  Co.  v.  Hamlll,  2  Col.  App.  237. 

66McCormic]^  v.  Brown.  36  Cal.  180:  95  Am.  Dec.  170;  and  Chabot 
V.  Tucker,  39  Cal.  4.34;  2  Am.  Rep.  402;  overruling  Smith  v.  Rich- 
mond, 19  Cal.  476;  see  §  682,  ante. 


639  PROMISSORY  NOTES,  ETC.      §§  1118,  1119 

the  complaint  is  demurrable.  The  averment  that  there  is  a 
certain  amount  due  upon  the  note  is  iusuihcientj  being  a  state- 
ment of  a  mere  conclusion  of  law.^^  An  allegation  in  the  com- 
plaint that  "  no  part  of  said  note,  principal  or  interest,  has  been 
paid,"  is  a  sufficient  averment  of  a  breach.^ 

§  1118.  Note  held  adversely.  A  party  who  claims  to  be  the 
owner  of  a  promissory  note,  which  is  at  the  time  in  the  posses- 
sion of  another  claiming  title  thereto,  can  not  maintain  an  action 
thereon;  the  maker  being  entitled  to  have  it  delivered  up,  and 
canceled  upon  paying  it.  The  title  to  the  note  could  not  be 
settled  in  such  suit.^ 

§  1119.  Negotiability.  In  Indiana  a  promissory  note  made 
payable  at  a  bank  in  that  state  having  an  actual  existence,  is  ne- 
gotiable; if  not  so  payable,  it  is  assignable,  but  is  not  commer- 
cial paper;"*^  and  in  an  action  brought  thereon  by  a  bona  fide 
holder,  the  maker  is  not  estopped  from  showing  that  there  was 
no  such  bank  in  existence.'^-^  A  promissory  note  providing  that 
it  may  be  paid  at  any  time  before  maturity,  and  that  interest  at 
eighteen  per  cent,  per  annum  shall  be  deducted  till  due,  is  not 
negotiable.'^^  A  note  may  be  negotiable  if  payable  certainly 
at  a  fixed  time,  although  subject  to  a  contingency  under  which 
it  may  become  due  earlier.'^^  The  current  rate  of  exchange 
must  be  proved  by  extrinsic  evidence;  therefore  a  promise  to  pay 

67  Frisch  V.  Caler,  21  Cal.  71. 

68  Jones  V.  Frost,  28  Cal.  24.'i.  Nonpayment  must  be  allecred.  Not- 
man  v.  Green,  90  id.  172;  Barney  v.  Vijroreaux,  92  id.  3.31.  And  an 
allepation  that  the  defendant  has  refused  and  still  does  refuse  to 
pay  the  principal  or  interest  of  the  note,  or  any  pail  tlier<'of,  and 
that  there  is  now  due  tlie  plaintiff  a  certain  sum,  is  Insufficient. 
Scroufo  V.  Clay,  71  Cal.  12.3.  The  rule  is  stated  to  be,  tliat  upon 
an  ordinary  contract  for  the  payment  of  money,  nonpayment  Is  a 
fact  which  constitutes  the  breach  of  the  contract  and  is  tlie  essence 
of  the  cause  of  action,  and  mu.st  be  alleged  in  the  complaint.  T^ent 
V.  New  York,  etc..  Railway  Co.,  130  N.  Y.  .~>04,  HIO;  comp.are  Andrews 
V.  Moller,  .37  Hun,  480;  Turner  v.  Kouwcnliovcn,  100  \.  Y.  11.'). 

69Crandall  v.  f><-hroepi)el,  1  Ilun,  ry~>~. 

70  Kinp  V.  Vance,  40  Ind.  24(i. 

71  Flr-st  Nat.  Ranl<  v.  fJrindstaff,  -ir,  Iiid.  l.'')8:  aeo,  also.  Melton  v. 
Gibson,  97  id.  1.")8;  1)6  Panw  v.  Ranlc  of  Sal.-ni.  12<;  id.  r.r)3. 

72 Way  V.  Smith.  Ill  Mnss.  .^►23. 

73  Ernst  V.  Stecl<mnn.  74  Penn.  St.  13;  l.*"*  Am.  Rep.  M2;  compare 
Citizens'  Nat.  Rank  v.  riollet,  120  Penn.  St.  194:  12  Am.  St.  Rep. 
860;  Iron  City  Nat.  Rank  v.  McC<»rd,  1.39  Penn.  St.  .^2;  23  Am.  St. 
Bep.  1G6;  Costello  v.  Crowell,  127  Mass.  293;  34  Am,  Rep.  367. 


g  1120  FORMS  OK  COMI'LAINTS.  040 

II  sum  I'crlain  witli  llie  cunviil  rale  ul'  oxcliaiige  added,  is  not  a 
negotiable  uote.^'' 

§  1120.  Allegation  of  ownership.  The  averment  in  the  com- 
plaint that  plaintill'  is  the  owner  of  the  note  and  mortgage  in 
suit,  is  a  sulKeient  answer  to  a  demurrer,  on  the  ground  that  it 
iloes  not  appear  by  the  complaint  that  the  plaintiff  is  the  holder 
oi'  the  note.'^^  That  the  defendant  made  his  promissory  note  in 
writing,  and  thereby  "  promised  to  pay  plaintiff,"  is  sufficient 
to  show  that  plaintiff  is  owner  of  the  note.'^^  The  averment 
that  the  plaintiff  was  owner  of  the  note  is  not  the  averment  of  an 
issuable  fact.  It  is  the  allegation  of  a  legal  conclusion,  and  is 
immaterial,  and  should  be  omitted.'^'^  For  the  plaintiff  may  re- 
cover without  being  the  holder,  as  where  the  note  has  been 
destroyed  or  lost.'^*  Or,  as  when  the  note  is  in  possession  of 
defendant."*^  In  such  cases  he  may  sue  if  he  is  the  real  party 
in  interest,  trustee  of  an  express  trust,'  or  person  authorized  by 
statute.^*'  Although  an  allegation  in  an  action  upon  a  note 
that  the  "  plaintiff  is  now  the  holder  and  owner  of  the  said 
promissory  note  "  is  not  sufficient  in  itself  to  show  ownership  in 
the  plaintiff,  yet,  where  it  is  also  alleged  that  the  note  when 
made  was  delivered  to  the  payee  named  therein,  and  that  there- 
after such  payee  for  value,  and  before  maturity,  assigned  the 
note  by  indorsing  the  same  in  blanli  on  the  back  thereof,  such 
allegation,  taken  in  connection  with,  the  allegation  of  posses- 
sion, is  sufficient  to  show  the  plaintiff's  title.^^     An  allegation 

74  Lowe  V.  Bliss,  24  111.  168;  7(5  Am.  Dec.  742;  Hill  v.  Todd,  29 
111.  101;  Savings  Bank  v.  Strotlier,  28  S.  O.  504;  Windsor  Sav.  Bank 
V.  McMahon,  38  Fed.  Rep.  28.3. 

75  Rollins  v.  Forbes,  10  Cal.  300. 

76  Moss  v.  Cully,  1  Orec.  147;  G2  Am.  Dec.  301. 

77  Poorman  v.  Mills,  3.'i  Cal.  118;  9.5  Am.  Doc.  90;  approving  Wed- 
derspoon  v.  Rogers,  32  Cal.  5()9;  Bank  of  Shasta  v.  Boyd.  99  id.  604; 
see,  also.  Flammer  v.  Kline,  9  How.  Pr.  216;  Bank  of  Lowville  v. 
Edwards,  11  id.  217;  Mitchell  v.  Hyde,  12  id.  460;  Keteltas  v.  iMyers, 
19  N.  Y.  231;  Farmers',  etc..  Bank  v.  Wadsworth,  24  id.  .547;  Xiblo 
r.  Harrison,  7  Abb.  Pr.  447;  Skinner  v.  Stuart,  13  id.  219;  Ohio, 
etc.,  Co.  V.  Goodin,  1  Handy.  31. 

78  Supervisors  v.  White,  30  Barb.  72:  Dos  Arts  v.  T.oggett.  16 
N.  Y.  582. 

79  Smith  V.  MoCluro,  5  Ea.st.  476;  Selden  v.  Pringle.  17  Barb.  468. 
wjRoot  V.   Price,  22  How.    Pr.   372;   Bntterfield   v.    McOmber,   id. 

1.50.     See.  on  this  subject,  "  Pleadings." 

81  Fames  v.  Crosior,  101  Cal.  260;  and  see  Pryce  v.  Jordan,  69  id. 
569;  Tullis  v.  Shannon,  3  Wash.  St.  716. 


641  PROMISSORY    XOTES,    ETC.  §§    1121,   112:2 

that  the  note  siied  on  was  assigned,  transferred,  delivered,  and 
indorsed  to  the  plaintiff  is  a  sufficient  allegation  that  it  was 
transferred  to  the  plaintiff  by  the  owner.*'-  A  complaint  show- 
ing title  in  the  plaintiff,  as  assignee  of  a  bank,  to  the  notes  sued 
on,  and  alleging  that  he  is  the  lawful  owner  and  holder  of 
them,  sufficiently  shows  his  right  to  recover  on  the  notes.^^ 
But  in  an  action  by  the  payee  of  a  note  against  the  maker,  a 
complaint  alleging  that  the  payee  assigned  said  note  to  a 
certain  bank  as  security  for  a  loan,  and  that  the  bank, 
though  requested  thereto,  refuses  to  bring  suit  after  the 
maturity  of  said  note,  fails  to  show  a  right  of  action  in.  the 
plaintiff.®*  A  promissory  note  payable  to  the  ''  order  of  A.  B., 
or  bearer,"  is  payable  to  bearer,  and  suit  can  be  maintained 
thereon  in  the  name  of  any  holder.^  A  complaint  in  an  ac- 
tion on  a  note  which  avers  the  execution  and  delivery  of  the 
note  for  a  valuable  consideration,  stating  the  date,  consideration, 
parties,  principal  sum,  rate  of  interest,  the  amount  due  and 
unpaid,  and  that  the  plaintiffs  are  now  the  owners  thereof  and 
entitled  to  receive  the  money  due  and  unpaid  thereon,  and 
have  not  indorsed  or  transferred  said  note,  but  that  the  same 
since  its  maturity  has  been  lost,  states  a  cause  of  action.®* 

§  1121.  Parties.  Persons  severally  liable  upon  the  same  ob- 
ligation or  instrument,  including  the  parties  to  bills  of  exchange 
and  promissory  notes,  and  sureties  on  the  snmo  or  separate 
instruments,  may  all  or  any  of  them  bo  included  in  the  same 
action,  at  the  option  of  the  plaintiff.®'^ 

§  1122.  Presentment.  In  an  action  against  the  maker  of  a 
note,  or  the  acceptor  of  a  bill  of  exchange,  in  whifh  the  place 
of  paATnent  is  fixed,  it  is  not  necessary  to  aver  presentment  at 
that  place  and  refusal  to  pay.®®  "Rut  the  averment  of  present- 
ment and  demand  of  note  at  the  place  specified  is  necessary  to 
charge  an  indorsor.®® 

PZOlBliPi  V.  fraven.  PA   \.  Y.  Snpp.  1021. 

RSOeilfnBS  v.  fJates.  87  Wis.  .m'>. 

«4  Davis  v.  EHokson,  3  Wnsli.  f^t.  fi.'">4. 

""Bltzer  v.  Wairar,  R.?  Mlrli.  22.T 

'wftrlnittler  v.  Kliitr.  ^?,  Moiit.  220;  nnd  spo  Ward  v.  Tlav.  R2  Tal. 
R02:  Oravps  v.  Drav.-.  (T,  Tfx.  iV,H. 

87  Pal.  C<uh-  f'iv.  Pro..  8  ?.HP,:  see  8  ir.S.  ante. 

W  Montpninfrr  v.  Tutf.  11   Tal.  ^07. 

89  Gay  V.  Paine,  5  TTow.  TN-.  107:  ppnipr  v.  WMllam*?.  14  Abb.  Pr. 
215;  Fnltod  Sfntes  Bank  v.  Smltb.   11    Wlipat.   171;  Woodwoi-th   v. 
Bank  of  Anierlra.  If)  .Tnlins.  410;  sfp   §   1041.   nvte. 
Vol.  T— R1 


§§  1123-1128  ron.MS  of  coMrLAiNTS.  642 

§  1123.  Real  party  in  interest.  if  the  holder  of  a  promis- 
sory iiole  legally  has  its  possession,  and  is  entitled  to  receive 
its  j)aynient,  he  is  the  .proper  })laintill'  in  its  prosecution,  and 
this  wiiliout  reference  to  the  pai'ty  who  may  ultimately  be  en- 
titled to  a  participation  in  its  proceeds.''" 

§  1124.  Rate  of  interest.  On  a  note  made  in  another  state, 
and  i)eariii^-  higlicr  intei'est  than  is  lawful  by  the  law  of  the 
forum,  the  foreign  statute  Jieod  not  1)0  pleaded,  for  the  court 
may  j)resuine  that  the  common  law,  l)y  which  any  rate  of  in- 
terest is  lawful,  prevails  in  the  law  of  the  place  of  the  contract. '^^ 

§  1125.  Substitute  notes.  A  complaint  is  not  deficient,  in 
stating  a  cause  of  action,  because  after  alleging  valid  notes,  it 
states  that  they  were  given  up  and  canceled  on  the  giving  by 
defendant  of  new  notes,  in  which  usiirions  interest  was  reserved 
for  the  extension  of  time.  The  plaintiff  may  in  such  a  case 
recover  npon  the  original  notes. ^^ 

§  1126.  Value  received.  The  legal  effect  of  a  promissory 
note  is  the  same  with  or  without  the  words  "  value  received."®^ 

§  1127.  Verbal  conditions.  In  Indiana,^'*  it  was  held  that 
a  verbal  condition  could  not  be  annexed  to  a  promissory  note; 
but  in  New^  York^^  it  was  held  that  a  bill  or  note  may  be  de- 
livered to  the  person  beneficially  interested  therein,  npon  con- 
ditions the  observ^ance  of  which  is  essential  to  its  validity;  and 
the  annexing  of  such  conditions  to  the  delivery  is  not  an  oral 
contradiction  to  the  written  obligation,  thongh  negotiable,  as 
between  the  parties  to  it  or  others  having  notice. 

§  1128.  Void  notes.  Notes  given  for  a  gaming  considera- 
tion are  valid  in  the  hands  of  a  bona  fide  indorsee.^^     A  negotia- 

»o  Williams  v.  Brown,  2  Koyes,  486.  Consult  "  Parties."  Elin- 
qnist  V.  Markoo.  4.">  Minn.  P,0.">;  IlarpendinK  v.  Daniel,  80  Ky.  449. 

f^i  Bncl<inghonso  v.  Gregff,  19  Ind.  (Kerr)  401. 

«2Winsted  Bank  v.  Webb,  39  N.  Y.  32.^:  100  Am.  Dec.  43.5;  and 
8oe  Patterson  \.  Birdsall,  04  N.  Y.  294;  21  Am.  Rep.  609. 

93  People  V.  McDermott,  8  Cal.  288;  Carnwright  v.  Gray,  127  N.  Y. 
92:  24  Am.  St.  Rep.  424. 

»4  Potter  T.  Earnest,  4.5  Ind.  410. 

OS  Benton  t.  Martin.  .52  N.  Y.  570. 

OR  Tlaitrbt  v.  .Toyee,  2  Cal.  04;  .50  Am.  Dec.  311;  and  see  T.vler  v. 
Carlisle.  79  Me.  210;  1  Am.  St.  Pop.  .301;  Soudheim  v.  Gilbert,  117 
Ind.  71;  10  Am.  St.  Rep.  23;  Snoddy  v.  Bank,  88  Tenn.  573;  17 
Am.  St.  Rep.  918. 


643  PROMISSORY  NOTES,  ETC.      §§  1129,  1130 

ble  note,  the  consideration  of  which  is  against  public  policy, 
becomes  valid  in  the  hands  of  an  innocent  holder  before  matur- 
ity.^^  A  promissory  note,  given  for  the  release  of  property 
seised  for  a  toll  imposed  by  the  state  law  on  lumber  floated 
down  a  stream  from  that  state  into  another,  is  void  for  want 
of  consideration.*® 

§  1129.  When  due.  When  days  of  grace  are  allowed,  the 
day  on  which  the  note  became  due  is  excluded  from  the  compu- 
tation.^^ And  the  maker  has  all  of  the  last  day  on  which  Ms 
note  falls  due  to  pay  it,  and  suit  commenced  thereon  on  that 
day  is  premature.^*^'^  A  promissory  note  payable  generally, 
without  specifying  any  time,  is  due  immediately.^^^ 

§  1130.   The  same  —  on  two  notes,  one  being  partly  paid. 
Form  No.  298. 
[Title.] 
The  plaintiff  complains,  and  alleges: 
First. —  For  a  first  cause  of  action: 

I.  That  on  the    day  of    ,   18 .  . ,   at 

,  the  defendant  made  and  delivered  to  the  plain- 
tiff his  promissory  note,  of  which  the  following  is  a  copy  [in- 
sert copy  of  note]. 

II.  That  he  has  not  paid  the  same    [except    

dollars,  paid  on  the   day  of   ,  18. .]. 

Second. —  For  a  second  cause  of  action: 

I.  That  on  the    day  of    ,   18 .  . ,   at 

,  the  defendant  made  and  delivered  to  the  plain- 
tiff his  promisson'  note,  of  which  the  follo^\nng  is  a  copy  [in- 
sert copy  of  the  note]. 

II.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

eTThorne  v.  Yontz,  4  Cal.  321. 

»8C.  R.  L.  Co.  V.  ratlerson,  .^3  Cal.  3.34. 

99  Story  on  Prom.  Notes,  §  217:  Chit,  on  Bills,  403;  Bailey  on 
Bills,  24.'):  seo  ITelsf  v.  Rnnipas,*;,  40  Ark.  .^>4.'>;  TIamilton  Gin  Co. 
V.  Sinker,  74  Tex.  .^>1;  Benson  v.  Adams,  09  Ind.  3."3;  S.'^  Am.  Rep. 
220. 

ioowilromlK»  V.  Dodce.  3  Cal.  2r,0:  m  Am.  Deo.  411:  see  Davis 
r.  Ei>pinefr.  18  C;il.  .381-  70  Am.  Doc.  184;  Boll  v.  Sackett,  38  Cal. 
407. 

lf>i  TTolniofl  r.  West,  17  Cal.  023;  O'Noll  v.  Maprner.  81  id.  HSl; 
If;  Am.  St  Rop.  88;  CoiislnB  v.  Partridpo,  79  Cal.  228;  see  ante,  "  Bills 
of  Exchange." 


§§  1131,  113'^      rORMS  OF  COMPLAINTS.  044 

Wherefore  tlie  plaiulitl;  demands  judgment  against  the  de- 
fendiuit  lor  the  8uni  oi  [aggregate  principal],  wUli  interest  on. 

dollars    tkereol',    Ironi    the     day    of 

,    and    with    interest    on     dollars 

thereof,  from  the day  of ,  and  costs  of 

SUit.102 


§  1131.  Causes  of  action.  It  would  seem  that  several  notea 
are  several  causes  of  action,  and  must  be  separately  stated.^"^ 
But  it  appears  the  contrary  is  held  in  lowa.^"* 


§  1132.   Several  notes  given  as  security. 

Form  No.  ^pp. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  upon  the day  of ,  18. .,  the 

defendants    were   indebted   to   the    plaintiffs   in   the   sum   of 
dollars. 

II.  That  to  secure  the  payment  of  that  sum,  the  defendants 
made  their  promissory  notes,  copies  of  which  are  hereto  an- 
nexed, marked  Exhibits  "  A,"  "  B,"  and  "  C." 

III.  That  at  the  same  time  the  defendants  agreed  with  the 
plaintiffs,  in  writing,  that  in  case  of  default  in  the  payment  of 
any  of  the  said  notes,  at  any  time  when  the  same  should  become 

due  and  payable,  the  whole  amount  of  said  sum  of 

dollars  and  interest,  then  remaining  unpaid,  should  forthwith, 
at  the  option  of  the  plaintiffs,  become  at  once  due  and  payable. 

IV.  That  the  first  of  said  notes  became  due  and  payable  on 
the   day  of   18.. 

V.  That  defendants  have  not  paid  the  same  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

102  If  preferred,  and  in  fact  it  is  the  better  practioe,  a  copy  of  the 
notes  may  be  set  out,  in  pleading  on  written  instruments.  By  doing 
BO,  the  genuineness  and  due  execution  of  the  instrument  are 
deemed  admitted,  unless  the  answer  denying  the  same  be  verlfl<-d. 
Cal.  Code  Civ.  Pro..  §  447. 

103  Van  Namee  v.  Peoble,  9  How.  Pr.  198;  Dorman  v.  Kellam,  4 
Abb.  Pr.  202. 

104  Merritt  v.  Nlhart,  11  Iowa,  57;  Ragan  v.  Day,  46  Iowa,  239. 


645  PROMISSORY    NOTES,    ETC.  §§    1133,   1134: 

S  1133.   On  a  note  signed  by  an  agent. 
For»i  i\'o.  soo. 

[Title.] 
The  plaintiti'  complains,  and  alleges: 

I.  That   on  the    day   of    ,   18 .  . ,   at 

,  the  defendant,  by  his  agent  [or  attorney  in  fact], 

duly  authorized  thereto,  made  liis  promissory  note,  and  thereby 

promised  to  pay  to  the  plaintiff  [or  his  order]    

dollars,    months  after  said  date. 

II.  That  he  has  not  paid  the  same    [except    

dollars,  paid  on  the day  of ,  18. .]. 

[Demand  of  Judgment.] 
[Annex  copies  of  notes  marked  Exhibits  "A,"  "  B  "  and  "  C."]  "'^ 

§  1134.  Action  on  note  executed  by  agent.  A  complaint 
averring  that  the  principal,  by  his  agent,  made  a  promissory 
note,  is  good.^*^"  But  it  has  been  held  that  in  the  common 
counts  it  is  not  necessary  to  state  that  the  defendants  acted  by  an 
agent,  but  that  an  averment  that  the  act  was  the  act  of  the 
defendants  would  be  supported  by  proof  of  the  act  of  their 
agent.^*^^  ^Vhe^e  the  pleading  shows,  by  setting  out  a  copy  of 
the  instrument,  that  the  act  was  by  an  agent,  his  authority 
sbould  be  averred. ^°*  The  ratification  by  a  principal,  of  an 
unauthorized  act  of  an  agent,  has  a  retroactive  efficacy,  and 
being  equivalent  to  an  original  authority,  an  allegation  of  due 
authority  is  sustained  by  proof  of  such  ratification. ^°^ 

ii^s  It  is  not  neoes.sary  to  allope,  "  agroofl  to  delivor  and  did  make 
and  deliver  to  the  plaintiffs,"  ])erauso  tlio  copios  are  annexed,  sliow- 
intr  jtossession  in  tlio  plaintiff  of  tlie  said  notes,  and  booanse  "  mado  " 
implies  delivery.  See  Brown  v.  South.  Mich.  R.  R.  Co.,  6  Abb.  Pr. 
237. 

if^"  Childress  v.  Emory,  8  Wheat.  042;  Sherman  v.  Comstock,  2 
MfLean,  19;  comjiare  Wilson  v.  Porter,  2  Cranch  G.  C.  4.58. 

107  Sherman  v.  New  York  Cent.  R.  R.  Co.,  22  Barb.  239. 

if>«  MeCnllonph  v.  Moss,  r,  Don.  .^)r,7. 

109  iToyt  V.  Thompson's  Ex'rs,  10  N.  Y.  207.  Where  it  is  cl.ilmed 
that.  In  the  exonition  and  deliverA-  of  a  note,  tho  maker  acted  as 
apent  for  anotlier.  an  ar-tion  llicreon  ran  not  be  liialntained  ajralnst 
both  the  alleped  principal  and  acpnt.  First  Xat.  Bank  v.  Tnrnor, 
24  N.  Y.  Supp.  793.  In  this  case  the  complaint  was  hold  bad  on 
demurrer. 


§§    1135-1138  FORMS    OF    COMI'LAINTS.  64:6 

§  1135.  Ou  a  note  made  by  parmers. 
Form  i\o.  joi. 

[Title.] 

The  plaiiitiif  coniplaina,  and  alleges: 

I.  That  oil  the    day   of    ,   18..,   at 

,  the  defendants,  under  their  firm  name  of  A.  B. 

&  Co.,  made  and  delivered  to  the  plaintiff  their  promissory  note, 
of  which  tlie  following  is  a  copy  [insert  cojiy  of  note]. 

II.  That  they  ha\e  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§1136.  The  same  —  how  alleged.  Signature  of  a  note,  in 
the  name  of  a  firm,  by  a  paxtner,  may  be  alleged  as  made  by 
the  firm.  It  is  sufficient  to  set  forth  a  writing  according  to  its 
legal  effect.^^*^  All  the  joint  makers  of  a  promissory  note  are 
principals;^^^  and  suit  must  be  brought  against  them  all."^ 

§  1137.   Another  form,  averring  partnership. 
Form  No.  302. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  of  making  the  note  hereinafter  men- 
tioned, the  defendants  were  partners  doing  business  at , 

under  the  firm  name  of  A.  B.  &  Co. 

II.  That  on  the    day  of    ,   18.  .,  at 

,  the  defendants,  under  their  said  firm  name,  made 

their  promissory  note,  and  therel)y  promised  to  pay  the  plaintiff 
dollars months  after  said  date. 

III.  That  they  have  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  1138.   Allegation  by  payee  as  receiver  against  partners. 
Form  No.  303. 

That  heretofore  the  defendants  under  their  finn  name  of  A. 
B.  &  Co.,  made  their  promissory  note,  and  tliereljy  promised  to 

pay  to  the  plaintiff,  as  such  receiver  [or  to  his  order], 

dollars  on  the  ....'....  day  of ,  18 . . 

no  Manhattan  Co.  v.  Ledyard,  1  Cai.  192;  Vallett  v.  Parker,  6 
Wond.  r,l.'">:  see  Bats  v.  Clive.  4  Camp.  78. 

Ill  Shriver  v.  Lovejoy,  32  Cal.  574. 

ii2-\\'oodworth  v.  Spafford,  2  McLean,  168;  Keller  v.  Blasdel,  1 
Nev.  491. 


647  PEOMISSORY    NOTES,    ETC.  §§    1139-1142 

§  1139.  As  such  receiver.  The  act  should  be  averred  as 
that  of  the  party  a&  such  receiver."^  Where,  however,  the 
plaintilf's  character  is  once  sufficiently  stated,  the  word  "  plain- 
tiff" in  subsec^uent  parts  of  the  pleading  requires  no  addition 
to  the  description. 

§  1140.  Partnership.  An  averment  that  the  note  was  in- 
dorsed by  the  defendants  under  a  certain  name  and  description 
is  sufficient."*  Where  the  fact  of  partnership  is  likely  to  be 
drawn  in  question,  it  is  better  to  aver  the  fact  distinctly."^ 
The  denial  of  the  copartnersliip  of  the  plaintiffs  is  immaterial 
unless  the  defendant  denies  the  execution  of  the  note.^^® 

§  1141.   Sight  note,  allegation  of. 

Form  No.  304. 

That  on  the day  of ,  18 .  . ,  at , 

said  note  was  duly  presented  to  the  defendant  [maker J,  with 
notice  that  payment  was  required  according  to  the  terms 
thereof.^^'^ 

§  1142.   On  a  note  wrongly  dated. 

Form   No.  305 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on   the    day  of    18 .  . ,   at 

,the  defendant  made  and  delivered  to  tlie  plain- 
tiff his  certain  promissory  note,  of  which  the  following  is  a  copy 
[insert  copy  of  note"];  that  by  inadvertence  or  mistake  said  note 

was  dated  as  of  tlie day  of ,  instead  of 

the  said day  of [the  date  of  delivery]. 

TT.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 
[Di::\rAxn  or  Jttdomext.] 

ii3>ren-ift  V.  Seaman.  C  X.  Y.  lOS,  and  fa.=;('R  lliPre  citod.  This 
clause  was  crtntained  in  liic  coniijlaint  in  Smith  v.  T-Pvinns,  S  Id. 
472;  and  see  Oould  v.  fJlass.  19  Barli.  ITit:  Slirldon  v.  Hoy,  11  How. 
Pr.  11. 

iHKondnll  v.  Fn-oman.  2  McLoan.  ISf);  Davis  v.  .\blii.tt,  id.  'J!>. 
In  an  action  by  a  coiiaitnersliiif  on  a  iiromi.ssory  note  al]»'>;rd  to 
li.'ive  liecn  exfc-ntcd  to  the  firm,  one  of  Hip  plaintiffs  ran  not  rppovpr 
.a  jiprsonnl  JiulfrniPnt  npon  proof  that  Mip  notp  was  executed  to  1dm 
Indlvi.lnally.    Wpinr.-i<li   v.  .Inlinson.  7S  Cal.  2.54. 

lis  Opplia  V.   T'ook.   .?   I»ncr.    KH. 

nnWliltwpll  V.  Tliom.'is    0  Cal.    tfin. 

insight   Is  a  condition   precedent.    2   Chit.    i'l.   234. 


§^     illo-ilir)  10U:\.>    Ol     CO.Ml'l.AlNlS.  (iiS 

§   1143.   Domestic   corporation,   payee,   against  a  foreign   cor- 
poration. 

}''or)ii   No.   306. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  [Allege  incorpcn-ation  of  plaintilT  under  the  act  as  in  form 
No.  75.] 

II.  That  the  dei'eiKUuit  is  a  corporation,  chartered  by  aJid 
under  the  laws  of  the  state  of  Nevada,  and  pursuant  to  an  act 
of  the  legislature  of  said  state  [title  of  act],  passed  [date  of 
enactment]. 

III.  That  on  the   day  of   ,  18.  .,  at 

■ ,  tho  defendant,  as  such  corporation,  by  one  \. 

B.,  its  agent   [or  attorney  in  fact],  made  its  promissory  note, 
and  thereby  promised  to  pay  to  the  plaintiff,  under  its  corporate 

name  of  E.  F.  [or  to  their  order], dollars, 

months  after  said  date.     A  copy  of  said  note  is  hereto  attached, 
marked  "  Exhibit  A,"  and  made  part  of  this  complaint. 

IV.  That  the  same  has  not  been  paid,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  1144.  Form  of  note.  "  The  president,  by  the  order  of  the 
board  of  the  A.  B.  Co.,  promises  to  pay,"  etc.,  signed  "  C.  D., 
Pres.,  E.  F.,'*  ct  al.,  binds  the  individuals  signing,  and  not  the 
corporation.^^^  "  The  president  and  directors  of  the  A.  B.  Co. 
will  pay,"  etc.,  signed  "  C.  D.,  Pres.,  E.  F.,"  et  al.,  does  not 
bind  the  individuals  signing,  bnt  only  the  corporation.^^^ 

§  1145.  Insurance  company.  In  an  action  by  the  indorsees 
against  the  maker  of  a  note,  of  which  an  insurance  company 
were  the  payees  and  indorsers,  the  complaint  showed  that  the 
defendant  made  his  note  to  the  Atlas  Mutual  Insurance  Com- 
pany, or  order;  and  that  the  company  indorsed  it,  and  trans- 
ferred and  delivered  it  to  the  plaintiffs,  but  it  did  not  expressly 
aver  that  the  transfer  was  made  pursuant  to  a  resolution  of  the 
board  of  directors;  it  was  held  sufficient  on  demurrer.  If  such 
resolutions  were  necessary,  it  was  implied  and  provable  under 
the  allegation  that  the  company  transferred  the  note.  But 
that  is  not  true  if  tho  transfer  was  not  made  by  the  proper 
officer,  and  according  to  law.^^o 

iiRTapliart  v.  Dodd.  ?,  Rush,  .'S4:  00  Am.  Dec.  25S. 
iinVf.wpll  V.  Dorld.  3  Bush.  .''>R1 :  fWT  Am.  Don.  2.'^n;  and  see  Casco 
Nat.  B.nnk  v.  Clark,  ^P,9  N.  Y.  ROT:  ?iC^  Am.  St.  Hep.  705. 
120  Nelson  V.  Eaton,  1.5  How.  Tr.  305. 


649  PKOMISSOKY    XOTES,    ETC.  §§    1146-114:8 

§  1146.  Power  of  corporation  to  make  note.  In  the  absence 
of  any  prohibitory  statute,  a  corporation  may  give  a  note  for  a 
debt  contracted  in  the  course  of  its  legitimate  business.^^^ 
Prima  facie,  a  corporation  has  power  to  take  a  promissory 
note.^^  Where  there  is  nothing  on  the  face  of  the  note  to  show 
that  it  was  issued  contrary  to  law,  or  that  the  consideration 
or  the  purpose  was  illegal,  the  presumption  is  that  it  was  given, 
for  a  lawful  purpose.^^ 

§    1147.   Payee  against   surviving  maker. 
Form  No.  307. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  of  the  making  the  noto  hereinafter  men- 
tioned, the  defendant  and  one  A.  B.  were  partners,  doing  busi- 
ness under  tlie  firm  name  of  A.  B.  &  Co. 

TI.  That  on  tlie    day  of    ,   18 .  . ,  at 

,  they  made,  under  their  said  firm  name,  their 

promissory  note  of  that  date,  of  which  the  following  is  a  copy 
[insert  copy  of  note]. 

III.  That  on  the   day  of   ,  18.  .,  at 

,  said  A.  B.  died,  leaving  the  defendant  the  sole 

surviving  partner  of  said  firm. 

IV.  That  said  note  has  not  boon  paid,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  1148.  When  action  lies  —  allegations.  A  joint  action  at 
law  can  not  be  maintained  against  the  survivor  and  adminis- 
trator of  the  deceased  maker  of  a  promissory  noto.^^  The  r\\\e 
in  equity  has  been  tha.t  the  estate  of  a  deceased  joint  obligor 
could  onlv  be  reached  when  the  survivor  was  bankrupt  or  in- 
solvent.^^"''    '\^nu'rr>   nn   notion   is  brongbt  ngainst   two,   as   the 

121  Mott  V.  TTirks,  1  Tow.  <rA?,,  .".^2;  1.".  Am.  Def>.  .'i.'>n:  iSfoss  v. 
Oakley.  2  ITill.  (\c,r>\  Attonu'V-Ocnoral  v.  Life  &  Fire  Insuranop  To., 
9  Paiire  rii.  470;  Kelle.v  v.  Mavor.  dc.  of  r.ro<-)kl.vn.  4  TTill.  2n.T: 
McCnllouch  V.  Moss,  r>  Donio.  .'CT:  Fifth  Ward  Sav.  "Rank  v.  First 
Nat.  Rank.  4S  X.  J.  L.  TA?,:  Wriplil  v.  Tlnplies,  119  Tnd.  R24:  12  Am. 
St  Rep.  412. 

122  Mutual  Ronpflt  T-lfe  Ins.  Oo.  v.  Davis.  12  N.  Y.  rm. 

123  Snfforrl  v.  Wyrkoff,  4  TTill,  442:  Rark(M-  v.  Morlianirs"  T'lro  Tns. 
Co..  .^  Wend.  0-i:  20  Am.  Dor.  C^A.  \  fni-|ioration  lias  no  imnllPd 
powf>r  to  beoomo  a  party  to  hills  or  notes  for  the  aofomniodatlon 
of  others.    National  Park  Rank  v.  Rocnrlty  Co.,  IIG  N.  Y.  281. 

124  Maples  v.  Oellor  1  Nfv.  2.^3. 
128  Id. 

82 


^^    lllit,  lloO  FORMS    OF    COMrLAINTS.  650 

s^urvivors  of  one  who  oxeeiited  a  joint  note,  it  is  not  essential 
to  iillogv  in  the  dochiialion  that  the  note  was  not  paid  by  the 
deceased.  1-*' 

§  1149.   Payee  against  maker  and  indorser,  on  note  taken  on 
the  faith  of  the  indorsement. 

I'orin  No.  joS. 

[Title.] 
The  plaintiff  eomplains,  and  alleges: 

I.  That  on  the    day  of    ,   18..,   at 

,  the  defendant   A.  B.    made  his  promissory  note;, 

and  thereby  promised  to  pay  to  the  order  of  the  plaintiff,  at 

,   the  sum   of    dollars,    

months  after  said  date. 

II.  That  the  defendant  C.  D.  indorsed  said  note,  when  said 
A.  B.  delivered  the  same  to  plaintiff. 

III.  That  said  note  at  maturity  was  presented  to  said  A.  B. 
for  payment,  and  payment  thereof  demanded,  but  the  same 
was  not  paid;  of  all  which  due  notice  was  given  to  the  defendant 
CD. 

IV.  That  said  note  was  made  hy  the  defendant  A.  B.,  and 
indorsed  by  the  defendant  C.  D.,  for  the  purpose  of  paying  for 
[state  what],  on  the  credit  of  such  indorsement;  that  the  de- 
fendant C.  D.  indorsed  the  same  for  the  purpose  of  procuring 
for  the  said  maker  a  credit  with  the  plaintiff,  knowing  that  it 
would  be  so  applied,  and  that  said  note  was  so  passed  and  so 
indorsed  by  the  defendant  with  his  privity,  to  the  plaintiff  in 
payment  for  [state  what]. 

V.  That  no  part  thereof  has  been  paid.''^'^ 

[Demand  of  Judgment.] 

§  1150.   First  indorsee  against  maker. 

Form  No.  309. 

[Title.] 

The  plaintifp  complains,  and  alleges: 

T.  That   on  the    day   of    ,    18 .  . ,   at 

the  defendant,  by  his  promissory  note,  promised 

to  pay  to  the  order  of  one  C.  D dollars. 

128  silver  V.  Hf^nderson,  3.  :MrT.pan,  10.5;  but  se©  Winter  v.  Simon- 
ton,  3  Cranch  O.  C.  02. 

127  See  as  to  the  .nutlinriti^s  sustaining  a  form  similar  to  this. 
Moore  v.  Cross,  If)  N.  Y.  227:  7.5  Am.  Dpc.  320.  For  a  complaint 
on  instrnmont  for  payment  of  money  only.  Held  sufficient  against 
makers,  and  insufBcient  against  indorsers,  in  Conkling  v.  Gandall, 
1  Keyes,  228. 


651  PROMISSORY    NOTES,    ETC.  §§    1151-1153 

II.  That  the  said  C.  D.  indorsed  the  same  to  the  plaintiff. 

III.  That  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

§  1151.  Consideration.  When  the  consideration  passing  be- 
tween tlie  indorsee  and  his  iudorser  is  not  equal  to  the  amount 
of  the  paper,  the  indorsee  as  against  his  indorser  can  recover 
only  tlie  amount  of  consideration  he  has  paid.^^®  The  indorse- 
ment, as  well  as  the  making  of  a  note,  imports  a  consideration.^^ 
The  phrase,  in  a  declaration  on  a  note,  that  the  plaintiff  re- 
ceived it  "  before  maturity,  bona  fide,  and  in  due  course  of 
trade,"  means  that  he  took  it  for  value. ^^° 

§  1152.  Indorsement  by  a  firm.  An  indorsement  or  signa- 
ture of  a  note,  in  the  name  of  a  firm,  by  a  partner,  may  be  al- 
leged as  made  by  the  firm.  It  is  sufficient  to  set  forth  a  writ- 
ing according  to  its  legal  effect.^^^  So,  also,  of  joint  makers  not 
alleged  to  be  partners. ^^^  It  is  sufficient  in  such  cases  to  allege, 
generally,  that  ]\I.  N.  &  Co,    indorsed  it.'^''' 

§  1153.  Owner.  The  holder  of  negotiable  paper  indorsed 
before  maturity  is  supposed  to  be  the  bona  fide  owner  of  the 
same,  and  all  intendments  are  in  his  favor.^"*^*  Nor  is  it  neces- 
sary that  he  should  show  how  he  became  possessed  of  the 
note.^^'^     His  right  to   maintain  tlie   action   can    not   be   ques- 

i2sroye  V.   Palmer,  10  Cal.   158. 

120  Hughes  v.  Wheeler,  8  Cow.  77;  Cruder  v.  .XniistrouK,  ."?  .Johns. 
Cas.  5;  2  Am.- Dec.  126;  Conroy  v.  "Warron.  :',  .Tohns.  Cas.  2.".9; 
2  Am.  Deo.  156;  Rafford  v.  Wyckoff,  4  Hill.  442;  Nelson  v.  Cowing, 
6  id.  3.30;  Wheeler  v.  Guild,  20  IMck.  550;  Collins  v.  Martin,  1 
P.OS.  S;  P.  048;  Lnning  v.  Wise,  04  C":il.  410. 

iw  MiUor  V.  MayfK'ld,  .•?7  Miss.  OSS.  An  alleviation  tliat  tlio  do- 
fendiint  beeaine  liable  and  in  eonsideration  tliereof  iiroinised  Iho 
[)lfiintiff  to  i)ay  him  tliP  note,  sntfieiently  nvera  lliat  tlie  defendant 
indorsed  tlie  noto  to  the  iiIaintifT  for  value.  I^jirllett  v.  Leathers, 
84  Me.  241. 

131  Manhattan  Co.  v.  Ledyaid,  1  ("ai.  102;  S.  C,  Col.  \-  V.  Cas. 
220;  Vallett  v.  Parker,  0  Wend.  Ol".:  Hass  v.  Clive,    I  ("amp.  fhS. 

132  Mack  V.  Spencer,  4  Wend.   111. 

mscorliran  v.  Seott,  ?,  Weiul.  22^>;  Paeon  v.  Cook,  1  Sandf.  77; 
}ind  see  T.ow  v.  Warden.  77  Cal.  '^•1. 

134  Palmer  v.  (loodwin,  5  Cal.  4.5S;  Speneer  v.  Carstarjienijlien, 
15  Oretr,  445;  Wnlselmer  v.  Sells,  87  Ind.  71;  I?est  v.  .National  Bank,, 
70  III.  OOS;  Ilininielniann  v.  llotaling,  40  Cal.  111. 

iscid.;  5  Am.  Rep.  GOO. 


5;^  1151,1155  rouMs  ok  comtlaixts.  05;:^ 

tioned  on  the  grouiul  tlial  tlu'  note  belongs  to  a  tliird  party, 
except  defendant  pleads  ])a}iiient  to  or  oll'set  againat  that 
jiarly.'-"'  So,  it  has  been  decided  that  the  possession  obtained 
before  or  aft^r  maturity  is  prima  facie  evidence'  of  ownership. ^^^ 
Jt  is  no  objection  to  a  recovery  that  title  l)e  shown  out  of  the 
payee  by  special  indorsements,  without  any  retransfer  from 
the  last  indorsee,  if  there  be  proof  that  the  indorsees  had  no 
interest  in  it.^^^  An  allegation  that  the  plaintiif  (indorsee) 
is  owner,  or  owner  and  holder,  is  unnecessary,  since,  when  title 
is  shown,  a  denial  that  he  is  the  lawful  owner  and  holder,  is 
frivolous.^^^ 

§  1154.   The  same,  against  first  indorser. 
Form  No.   310. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  indorsed  to  the  plaintiff  a  promis- 
sory note,  made  [or  purporting  to  have  been  made]  by  one  A,  B., 

on  the day  of ,  18 .  . ,  at , 

to  the  order  of  the  defendant  to  the  sum  of dollars. 

II.  That  on  the   day  of   ,  18.  .,  the 

same  was  presented  to  the  said  A.  B.  for  pa3^ment,  and  payment 
thereof  demanded,  but  the  same  was  not  paid  [or  state  facts 
excusing  want  of  presentment]. 

III.  That  due  notice  thereof  was  given  to  the  defendant. 

IV.  That  he  has  not  paid  the  same,  or  any  part  thereof. 

[Demand  of  Judgment.] 

§  1155.  Accommodation  indorsement.  Where  a  promissory 
note  was  indorsed  l)y  a  third  ])crson  before  delivery  to  the  payee, 
it  was  held  that  such  indorsement  was  prima  facie  an  accommo- 
dation to  the  payee,  but  proof  that  his  design  was  to  become  a 

130  Trice  v.  Dunlap,  5  Cal.  483. 

137  McCann  v.  Lewis,  8  Cal.  246. 

issNaple  v.  Lyman,  14  Cal.  450. 

i39Catlin  V.  Gunter,  1  Duer.  2.53;  Fleury  v.  Roget,  5  Sanrlf.  646; 
Poornian  v.  Mills,  35  Cal.  118;  95  Am.  Dec.  90;  Peleh  v.  Beaudry, 
40  Cal.  439.  In  an  action  by  an  indorsee  afrninst  the  makers  of 
a  note,  the  note,  and  not  the  indorsement,  is  the  contract  con- 
stiti'tins:  the  cause  of  action.  And  it  is  sufflfient  to  aver  in  the 
complaint  that  the  note  was  indorsed  by  the  payee  to  the  holder, 
without  setting  forth  the  indorsenient.  Bascom  v.  Tt>ner,  5  Ind. 
App.  229;  and  see  Price  v.  Jordan,  69  Cal.  .569. 


653  PEOillSSORY    NOTES,    ETC.  §    115(> 

surety  or  guarantor  would  make  liim  liable  to  the  payee.^'**^ 
Where  a  promissory  uote  made  payable  to  S.,  and  previous  to 
its  delivery  to  payee  was  indorsed  for  the  accommodation  of 
maker  by  Ji.  and  brother,  and  defendant,  upon  agreement  that 
each  would  become  surety  if  the  other  would,  they  were  guaran- 
tors jointly  and  not  severally  liable.''*^  To  create  a  several  lia- 
bility, express  words  are  necessary. ^•^^ 

§  1156.  Demand,  how  made  and  alleged.  Payment  of  the 
note  must  be  first  properly  demanded  of  the  makers,  and  due 
notice  given  to  the  indorser,  befo]-e  any  legal  liability  attaches 
to  the  latter;  and  it  is  incumbent  upon  the  pleader  to  state 
these  facts. ■^'*^  That  as  against  the  indurser,  an  averment  of  de- 
mand at  the  place  designated  is  deemed  necessai-y.^^^  11'  there 
are  stated  business  hours  at  the  place  where  it  is  made  payable, 
presentment  and  demand  must  be  made  within  those  hours.^^^ 
If  a  promissory  note,  payable  on  demand,  or  at  sight,  without 
interest,  is  not  duly  presented  for  payment  within  six  months 
from  its  date,  the  indorsers  thereof  are  exonerated,  unless  such 
presentment  is  excused. ^*^  But  if  payable  at  sight  or  on  de- 
jnand  with  interest,  mere  delay  in  pre^senting  does  not  exonerate 
any  party  thereto.^'*'^  The  failure  to  make  presentment  and 
demand  would  not  discharge  the  debt,  but  would  only  affect 
the  cpiestion  of  casts  and  damages.^*^  In  an  action  against  the 
indorser  of  a  bill  or  note,  an  allegation  of  a  demand  in  general 
terms,  "  although  often  requested,"  etc.,  is  good  after  verdict.^*^ 
But  if  the  note  was  made  payable  at  a  particular  place,  an  alle- 
gation as  in  preceding  form  vriW  he  sufficiently  specific  averment 
of  demand  and  notice.     The  contract  of  the  indorser  of  a  promis- 

140  Clarke  v.  Smitli,  2  Cal.  005. 

141  Brady  v.  Reynolds,  13  Cal.  31. 

142  Id. 

143  Conklln  v.  Gandall,  1  Kcyes.  22S;  and  see  rahquloque  Bank 
V.  Mai-tln,  11  Abb.  Vi:  2t^t1 ;  Pinker  v.  Stroud,  08  N.  Y.  379;  .50  Am. 
Uci>.  <;s.".:  §  110<;.  ante. 

H4  Hank  of  T'rilted  Stntos  v.  Sinitli,  11  \\lieat.  171;  see  Civil  Code, 
iS  3131;  alw).  AppleKartli  v.  AblK)tt,  CI  Cal.  4.".!);  Brown  v.  Jones. 
n:{  Ind.  4*;;  3  .\n).  Sf.  Rp|>.  <;2.",;  I';irwcll  v.  Trust  Co.,  45  Minn.  495; 
22  Am.  St.   Keii.  742. 

146  McFarliind  v.   rieo.  8  Cal.  (;2U. 
i4«Cal.  Civil  Code.  §  3348. 

147  Id.,  §§  3214,  3247. 

148  MontRomory  v.  Tntt.  11   Cal.  .307. 

i40Lefflngwell  v.  Wliiio.  1  .lolms.  Cas.  09;  1  Am.  Dec.  97. 


Ji§    1157,1158  FORMS   OF   COMn.AlNTS.  G54 

t;orY  note  is  a  written  one,  and  his  liability  a  conditional  one, 
to  pay  upon  a  proper  demand  aaid  notice/^"  upon  a  demand 
upon  the  maker  made  within  a  reasonable  time,  and  that  in 
the  event  of  his  failure  to  do  so,  the  indorser  will  pay.^^^  And 
tlie  contract  can  not  be  clianged  from  a  conditional  to  an  abso- 
lute contract  by  parol  evidence. ^^^ 

§  1157.  Demand  and  notice,  allegation  of  excuse  of  omis- 
sion of.  An  express  waiver  of  notice  of  nonpayment  is  suffi- 
cient excuse  of  demand  and  notice  of  nonpayment.^'^'^  And  this 
may  he  done  by  an  agent  of  the  indorser,  and  a  verbal  waiver  of 
demand,  or  of  demand  and  notice,  may  be  proved.^''^  But  the 
declaration  of  the  indorser,  made  to  a  third  person,  "  that  notice 
not  having  been  given  at  the  proper  time  would  make  no  differ- 
ence to  him,  and  that  he  would  do  what  was  right,"  is  not  a 
waiver.^^^  Where  payment  hy  the  maker  to  the  indorser  is 
relied  upon  as  an  excuse,  it  must  be  payment  directly  and 
specifically  for  the  note,  not  as  security  for  transactions  in  the 
aggregate.^^"  If  the  waiver  was  before  maturity,  it  operates  as 
an  estoppel  to  the  indorser  from  denying  that  demand  was 
made  and  notice  given,  and  evidence  of  such  waiver  is  admis- 
sible imder  the  averment  of  demand  and  notice.^^'^ 

§  1158.  Indorsement,  averment  of.  An  averment  in  the  dec- 
laration that  the  note  was  indorsed  by  the  defendants  under 
a  certain  name  and  description,  is  sufficient.  Where  a  contract 
shows  a  joint  liability,  it  is  unnecessary  to  allege  a  partnership. -^^^ 

150  Goldman  v.  Davis,  23  Cal.  256. 

151  Keyes  v.  Fenstennaker,  24  Cal.  329. 

152  Goldman  v.  Davis,  23  Cal.  256. 

153  Matthey  v.  Gaily,  4  Oal.'  62;  60  Am.  Dec.  595;  Mintum  v. 
Fisher,  7  Cal.  573. 

154  See  Mills  v.  Beard,  19  Cal.  158;  see,  also,  Drinkwater  v.  Teb- 
betts,  17  Me.  16,  where  notice  Avas  waived  in  writing-. 

issoiendorf  v.  Swartz,  5  Cal.  480;  03  Am.  Dec.  141;  see  further, 
as  to  waiver,  §  1005,  ante;  Pool  v.  Anderson,  110  Iiul.  88;  Shaw  v. 
McNeil,  05  N.  C.  535. 

156  Van  Norden  v.  Buckley,  5  Oal.  283. 

157  Holmes  v.  Holmes,  9  N.  Y.  525;  Coddington  v.  Davis,  1  N.  Y. 
186;  see  Civil  Code,  §  3156.  The  fact  that  the  maker  of  a  note, 
before  its  maturity,  notifies  the  president  of  a  bank  in  which  it  was 
left  for  collection  that  lie  would  not  be  able  to  pay  it  at  maturity, 
does  not  excuse  the  linlder  from  presenting  it  for  payment  so  as 
to  charge  the  indorsers.    Applegarth  v.  Abbott,  64  Oal.  4.59. 

158  Kendall  v.  Freeman,  2  McLean,  186;  Davis  v.  Abbott,  Id.  29. 


655  PROMISSORY  NOTES,  ETC.     §§  1159,  1160 

The  fact  of  the  indorsement  only  need  be  pleaded  to  show  title 
in  the  plaintiH,  and  an  averment  that  the  plaintifE  is  the  owner 
and  holder  is  a  conclusion  of  law,  and  need  not  be  pleaded. ^^* 
Where  an  indorsement  upon  a  promissory  note  was  made,  not 
by  the  payee,  but  by  persons  who  did  not  appear  to  be  other- 
wise connected  with  the  note,  and  the  note  thus  indorsed  was 
handed  to  the  payee  before  maturity,  a  motion  to  strike  out  of 
the  declaration  a  recital  of  these  facts,  and  also  an  allegation 
that  this  indorsement  was  thus  made  for  the  purpose  of  guar- 
anteeing the  note,  was  properly  overruled. ^^  In  an  action 
against  a  corporation  as  indorsers,  it  need  not  be  averred  that 
the  note  was  indorsed  by  the  defendants  in  the  course  of  their 
legitimate  business.^^^ 

§  1159.  Indorsement,  effect  of.  The  presumption  is  that  the 
indorsee  of  a  promissory  note  ia  the  holder  thereof  for  value. ^^^ 
Where  a  promissory  note  is  indorsed  in  blank,  the  title  and 
right  of  action  pa.ss  by  delivery,  and  the  note  is  payable  to  the 
bearer.^^^  An  unlawful  diversion  is  not  to  be  presumed,  but 
negotiation  to  a  bona  fide  holder  may  be  presumed,  where  the 
paper  bears  the  blank  indorsement  of  the  defendant.^®*  An 
agent  who  has  received  a  promissory  note  by  indorsement,  holds 
the  title  as  against  all  persons  thereto,  except  the  principal,  and 
may  maintain  an  action  thereon  in  his  own  name.^^ 

§  1160.  Notice  to  charge  indorser.  Notice  of  demand,  as  well 
as  of  nonpayment,  should  be  alleged.^''®  A  general  averment  of 
notice  of  all  the  premises  is  sufficient. ^^^  Where  a  note  is  due 
on  the  fir-st  of  July,  the  fourth  being  a  nonjudicial  day,  notice 
of  protest  on  the  third  is  premature,  and  will  not  charge  the 
indorser.^^     In  California,  whenever  nny  act  of  a  secular  na- 

i-w  Poorman  v.    Mills.  .^')  Cal.   llS.  or>   Am.   Doo.   00;    §   l,<r>.   ante. 
160  Rpy  V.  Simpson.  22  How.  (U.  S.)  .341. 

i«i  Merhanies'  Banltinp  Ass'n  v.  Spring  Valley  Shot  &  Lead  Co., 
2.'»  Barb.  410;  Nolson  v.  Eaton,  l.'l  How.  Pr.  .30r>. 
i«2Poorman  v.  Mills,  ?,7>  r.al.  IIH;  0.')  Am.  Dcf.  90. 
ifl3  Id. 
iw  Rloe  V.  iRliain,   1    KeyRS.  44. 

166  P(X)rman  v.  Mills,  .T.  Pal.  US;  9.'")  Am.   De<'.  00. 
iwPaluniliKiiK-  Haiili  V.  >faiiln,  11  Abb.  Pr.  291;  Clift  v.  Rodger, 

2r»  Hun,  .39;  Ooolt  v.  Wan-on.  KS  N.  Y.  .37.  And  this  is  so,  althouRh 
the  noto  wna  past  duo  whon  th«'  defendant  Indorsod  it.  Alloman 
r.  Rowen.  ^T^  N.  Y.  Snpp.  31 S;  Eisenlord  v.  Dlllenbaok,  15  Hun,  23. 

167  Root  V.   Franklin,  3  .Johns.   207. 
i«8Toothaker  v.  Cornwall,  3  Cal.  144. 


i;  1101  FORMS  OF  COMPLAINTS.  656 

tuiT,  otlu'i-  than  n  work  of  nceessily  or  mercy,  is  appointed  by 
law  or  contract  to  ho  perl'orniod  upon  a  particular  day,  which 
day  falls  upon  a  holiday,  }t  may  be  performed  upon  the  next 
business  day,  with  the  same  ellect  as  if  it  had  been  performed 
upon  the  day  appointed. ^^"  If  much  time  intervenes  between 
demand  and  notice,  in  transfers  after  maturity,  the  question 
may  arise  whether  the  delay  has  not  released  the  indorser.^™ 
"When  demand  of  payment  is  made  upon  the  maker  of  a  note 
payable  on  demand,  notice  of  demand  and  nonpayment  must 
be  given  to  the  indorser  within  the  same  time  which  is  required 
in  the  case  of  a  bill  made  payable  at  a  particular  day;^''^  and  it 
should  be  made  on  the  day  following  the  demand,  unless  good 
reason  exists  for  not  doing  so.^'^^  An  indorser  who  signs  his 
name  under  the  words,  "  holden  on  the  within  note,"  is  entitled 
to  notice  of  demand  and  nonpayment. ^'^ 

§1161.  Notice,  how  given.  Notice  should  be  personally  served, 
if  indorser  resides  in  the  same  city,  and  in  such  case  service 
through  the  post-office  is  not  sufficient."'*  To  charge  an  in- 
dorser, it  is  not  necessary  to  show  that  the  notice  of  dishonor 
was  actually  received  by  him,  nor  even  that  it  was  addressed  to 
him  at  his  place  of  residence."^  Notice  left  by  a  notary  at  the 
residence  of  the  indorser,  he  being  at  the  time  absent,  but  not 
signed  by  any  one,  is  insufficient  to  charge  the  indorser.^'"  If 
the  notary  in  good  faith  use  due  diligence,  and  acts  upon  in- 
formation from  proper  parties  in  mailing  his  notice,  the  indorser 
will  be  charged,  notwithstanding  the  notice  may  be  sent  to  the 
wrong  place  and  never  reach  him."^  Notice  of  protest  of  a 
note  left  at  the  house  in  Washington  of  a  member  of  Congress, 
after  Congress  had  adjourned,  and  he  had  left  the  city  as  was 
his  custom  at  such  times,  and  his  domicile  was  in  the  district  he 
represented,  and  his  Washington  house  was  occupied  by  strang- 
ers by  his  permission,  who  did  not  pay  rent,  is  not  sufficient.^'^* 

i«9Cal.   Civil    Code,    §    11. 

170  Thompson  v.  Williams,  14  Cal.  IfiO. 

171  Keyes  v.  Fenstermaker,  24  Cal.  329. 

172  1(1. 

173  Vance  v.  Collins.  6  Cal.  435. 

174  1(1.;  but  see  Civil  Code,  §  3144. 

175  Carver  v.  Downie,  33  Cal.  176. 

176  Klookenbanm  v.  Pierson.  16  Cal.  375. 
i77  0arver  v.  Downie,  ?,:\  Cal.  176. 

178  Bayly's  Adm'r  v.   Chubb,   16  Gratt.   (Va.)   284.    As  to  service 
of  notice  under  the  Civil  Code  of  California,   see  §  3144.    Notice 


657  PROMISSORY  NOTES,  ETC.     §§  11G2,  1163 

§  1162.  Notice,  sufficiency  of.  A  notice  is  sufficient,  if  from 
it  it  can  be  reasonably  inferred  tliat  the  note  Avas  presented 
and  dishonored  ;^^^  but  if  it  state  that  the  demand  was  made  on 
a  day  subsequent  to  maturity,  it  will  not  bind  the  indorsers.^^*^ 
The  certificate  need  not  state  the  form  of  notice  given,  as  any 
notice  is  sufficient  which  informs  the  party,  either  by  express 
terms  or  by  implication. ^■'*^  "Whether  verbal  or  written,  and 
even  without  description  of  the  note,  if  at  the  time  of  receiving 
notice  he  knew  the  paper  referred  to,  it  is  sufficient. ^'^^  Where 
notes  are  indorsed  before  maturity,  the  notice  must  state  the 
time  of  the  demand  and  dishonor;  but  it  is  otherwise  where  the 
note  was  indorsed  after  maturity.  A  notice  by  the  holder  that 
he  had  "  demanded  payment  of  that  note,"  implies  a  demand 
of  the  maker;  and  the  declaration  that  he  intended  to  look  to 
the  indorser  for  payment,  implies  nonpayment. ^^-"^ 

§  1163.  Notice,  how  alleged.  Where  the  complaint  against 
the  indorser  of  a  note  alleges  due  demand,  non})ayment,  and 
protest,  and  that  due  notice  of  such  nonpayment  and  protest 
was  given,  it  is  sufficient,  without  averring  notice  of  demand 
also.'*^  A  general  averment  of  due  notice  is  sufficient  to  charge 
an  indorser.^^     "  That  the  note,  on  the  day  it  matured,  was 

presented  for  payment  at  the  banking-house  of   , 

and  y)ayment  thereof  demanded,  and  thereupon  the  same  was 
duly  protested  for  nonpayment,"  is  a  sufficient  notice  of  de- 
mand, refusal,  and  nonpayment,  to  charge  the  indorser. ^^^ 

may  properly  be  jriven  by  an  agent,  and  he  may  give  it  in  his  own 
name.  Drexlor  v.  MrOlynn.  99  Cal.  14.3.  Notice  iiiny  lio  given  to 
tlie  representatives  of  a  deceased  indorser.    Id. 

179  staugliton  V.  Swan,  4  Cal.  213;  GO  Am.  Dec.  (105;  Cal.  Civil 
Code,  §  314.3. 

iftOTovis  V.  Wof.d.  r,  Cal.  30.3. 

1R1  Mfl'arlnnd   v.   Pico.   S  Cal.   020. 

1^2  Thompson  v.  Williams,  14  Cal.  100.  Notiff  iiiny  be  given 
verbally.    Pierce  v.  Sfhaden.  .'").'»  Cal.  400. 

is^Tliompson  v.  Williama  14  Cal.  100. 

iM  Spenrer  v.  Ttogers  T^oromotivo  Works,  17  .\lil».  IV.  110. 

IV,  Fii^h  v.  Thrush.  8  Barn,  i^-  Cress.  3fi7:  S.  (\.  2  Man.  A:  R.  3.".9; 
Dwiglit  v.  Wing,  2  >[fl.<'an,  .>H0;  Rmltli  v.  McEvoy.  S  TTiah.  .''.S. 

1R«  Eiistman  v.  'nirnian,  24  Cal.  379.  But  a  comiilaint  st'Pl<lng  to 
charge  an  indorser  by  notlfo  of  protest,  whioh  sliows  njion  the 
far-o  of  tlie  jiloading  tiiat  ilu>  note  was  not  In  fac-f  ]»resont'd  at 
maturity  to  tlie  maker,  but  s«'ok8  to  e.xfnsp  presentment  mei-clv  upon 
the  ground  that  the  maker  fonld  not  be  found  hi  the  idare  nt  wlilch 
the  note  was  dated,  and  states  no  farts  respecting  the  knowledge 
Vol.  1—83 


§§   lUil,  11(>5 


IXili.MS    OF    COMPLAINTS.  658 


§  1164.  Presentment.  An  avcriuoiil  that  at  maturity  the  notcs 
were  duly  pret-entod  i'or  payment  to  the  makers,  is,  upon  de- 
murrer, a  sutlicient  averment  of  a  presentment  at  the  phice 
speeilied  in  the  notes.^"  Is  or  need  it  be  shown  by  whom  it  was 
presented^^^  An  aUegation  of  presentment  by  a  bank  does  not 
imply  ownership,  but  at  most  a  hokling  as  agent  for  another.^^'' 
Where  it  was  alleged  in  a  deelaration  that  a  note  when  due 
was  presented  to  the  bank  i'or  payment,  to-wit,  2M  of  July, 
1841,  it  was  held,  that  the  statement  of  the  date,  being  incon- 
sistent with  the  allegation  that  the  note  was  presented  when 
due.  should  be  rejeeted  as  surplusage.^'-*" 

§  1165.  Presentment  and  demand.  To  charge  an  indorser  of 
a  note  payable  on  demand,  presentment  must  be  made  within 
a  reasonable  time,  and  what  constitutes  a  reasonable  time  de- 
pends upon  the  facts  of  eacli  particular  case.^'-'^  If  delay  has 
occurred,  the  holder  must  aver  and  prove  the  circumstances 
excusing  the  delay.^^-  A  delay  of  thirteen  months  was  held 
unreasonable.^-''"^  After  presentment  and  demand,  the  lial)ilities 
of  the  parties  become  fixed.^*^^  But  the  presentment  and  de- 
mand must  be  made  in  reasonable  hours,  and  reasonable  hours 
depend  upon  the  question  whether  or  not  the  bill  is  payable 
at  a  bank  or  elsewhere.^*^^  And  wdien  a  promissory  note  is  pro- 
tested, the  protest  must  be  attended  wdth  all  the  incidents  of  a 
foreign  bill  of  exchange. ^^'''     Presentment  of  a  note  to  a  joint 

of  the  iudoi-seos,  or  their  ajfents.  as  to  the  actual  place  of  residence 
or  l>usiness  of  the  maker  of  the  note,  and  not  alleging  what  was 
such  last  knowai  place  of  residence  or  business,  or  that  an  Inquiry 
or  presentment  was  made  thereat,  is  held  insufficient  to  charge  the 
indorser.    Haber  v.  Brown,  101  Gal.  44.5.  . 

187  Ferner  v.  Williams,  37  Barb.  9;  14  Abb.  Pr.  2ir>. 

issBoehm  v.  Campbell.  Gow.  5.5;  S.  C.,  5  Bug.  Oom.  L.  R.  459. 
and  see  Hunt  v.  Maybe^,  7  N.  Y.  200. 

1S9  Farmers   &  Mechanics'  Bank  v.  Wadsworth,  24  N.  Y.  547. 

190  Ilyslop  V.  Jones,  ?^  McLean,  90. 

191  Keyes  y.  Fenstermaker,  24  Gal.  829. 

192  Id.  In  case  of  indorsement  of  an  overdue  note,  demand  and 
notice  should  be  made  and  given  at  least  within  the  time  for  de- 
mand and  notice  in  case  of  a  note  payable  on  demand.  Beer  v. 
Clifton,  98  Cal.  .32.3;  .3.5  Am.  St.  Rep.  172;  and  see  Smith  v.  Cars,  9 
Oreg.  278;  Bassenhorst  v.  Wilby,  45  Ohio  St.  333. 

193  Jerome  v.   Stebbins,   14  Cal.  474. 

194  McFarland  v.  Fico,  8  Cal.  026. 

185  Id. 

iWTevIs  V.  Randall,  0  Cal.  632;  65  Am.  Dec.  547. 


659  PEOMISSOKY   NOTES,   ETC.  §§    1166-1169 

maker  is  excused,  if  at  the  time  of  the  execution  and  maturity 
of  the  note,  such  maker  resided  in  a  state  other  than  that  in 
whicli  payment  sliould  be  made.^*^ 

§  1166.   Allegation  of  notice  to  indorser  waived. 

Ponit   No.   311. 
That  the  defendant  [indorser]  thereafter  waived  the  laches 
of  the  plaintiff  in  not  giving  him  notice  thereof,  and  promised 
to  pay  said  note. 

§  1167.  Allegation  of  excuse  for  nonpresentment — maker  not 
found. 

Form  No.  312. 

That  at  the  maturity  of  said  note,  search  and  inquiry  was 
made  for  said  John  Doe,  at  [place  of  date  of  note],  tliat  the 
same  might  be  presented  to  him  for  payment;  but  he  could  not 
be  found,  and  the  same  was  not  paid.  [Note. —  State  any  facts 
relative  to  search  and  inquiry,  aud  failure  to  find  the  party.]^^^ 

§  1168.  Allegation  of  promise  to  pay.  There  is  a  distinction 
between  a  promise  by  tlie  indorser  to  pay,  proved  as  presumptive 
evidence  of  actual  notice,  and  a  promise  proved  as  evidence  of 
a  waiver.     The  former  should  not  be  alleged;  the  latter  should. ^^'^ 

§  1169.  Protest.  There  is  no  necessity  of  protesting  a  promis- 
sory note.  A  demand  of  payment  and  refusal,  and  notice  to 
the  indorser  are  all  that  is  recjuircd.^^  It  is  but  a  form  of  evi- 
dence of  demand  and  notice.  A  simple  averment  of  present- 
ment and  refusal  to  pay  is  sufficient. ^"^  An  avenncnt  of  pro- 
test does  not  imply  a  proper  demand.-"^  An  averment  tliat  a 
note  protested  is  not  eciuivnlent  to  an  averment  tbat  it  was  didy 
presented  for  payment  to  the  maker,  and  payment  was  refused. '"•'' 

lOTLuninp  v.  Wise,  04  Cal.  410. 

19S  Of  fourse  tho  allepatioii  dciiends  upon  tho  farts  in  earli  rase. 
As  to  suflicienry  of  this  form,  see  2  Cliit.  PI.  VM\  also,  IlalxT  v. 
Brown,  101   Cal.  445. 

i«» 'I'liornton  v.  Wynn,  12  Wlieat.  IS."',;  I.Poiiiii-il  v.  fJary,  10  Wrnd. 
.^.04;  Tohhctts  V.  Dowd,  2.'{  id.  .'{TI*;  Miil.-r  v.  IliuUify,  .">  .lolms.  :MT^; 
4  Am.  Dee.  .^72;  Diir^'eo  v.  Dc'iuiisoii,  .">  .lolms.  21S;  .lones  v. 
O'Brien,  2(;  En^'.  L.  i<c  Va\.  '2X\. 

2001  Pars,  on  Timt.  2:«;  Edw.  on  Bill.s.  2<;H;  fVuldln^rton  v.  Dnvis, 
1  N.  Y.  180;  McFarljind  v.  Pico,  S  f'al.  <i2<;;  Cole  v.  .Tessup,  10  How. 
Pr.  r>1.%. 

201  Prifc  V.   Mff'lave,  C  iMicr,  .>)!. 

202f;rMlinm  v.  Mac-liado,  c,  Dupr.  ."it.'n  Prifo  v.  McClavo,  Id.  .''>44. 

203  Price  V.  McClave,  3  Xhh.  Pr.  203. 


g§   1170-11T3  rouMs  ok  comi'Laints.  660 

§  1170.   The  same  —  against  maker  and  first  indorser. 
Ju)nn   No.  313. 
LTlTl.K.J 

The  plaintiir  coiuphuiis,  ami  alleges: 

I.  That  (111  the    day  oi'   ,  18.  .,  at 

,  the  defendant    A.  Ji.,  by  his  promissory  note, 

promised  to  pay  to  the  defendant   i^.  D.    dollars, 

months  after  date. 

II.  That  the  said  V.  D.  indorsed  the  same  to  the  plaintiff. 

III.  That  on  the day  of ,  18.  .,  the 

same  was  presented  to  the  said  A.  13.  for  payment,  but  was  not 
paid. 

IV.  That  due  notice  thereof  was  given  to  the  said  C.  D. 

V.  That  they  have  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  1171.  Discharge  of  indebtedness.  Giving  a  note  payable  at 
a  future  time  does  not  discharge  the  debt.^^  So  when  a  note 
is  given  for  an  account. ^°^  The  substitution  of  a  new  security 
will  discharge  the  indorser .^*^  Where  a  person  sued  on  a  note 
which  had  two  indorsements,  signed  by  the  payee,  the  first  a 
receipt  for  the  amount  due,  and  the  second  in  the  words,  "•  with- 
out recourse  to  me,"  there  was  no  presumption  that  the  indorse- 
ments were  made  at  different  times,  or  that  payment  was  volun- 
tary and  unconditional.^*''^ 

§  1172.  Indorsement.  The  allegation  of  indorsement  to  the 
plaintiff  is  essential.-°^ 

§  1173.  Joint  and  several  liability.  In  New  York  the  as- 
signor and  maker  of  nonnegotiable  paper  can  not  be  joined  in 
an  action  thereon  by  the  assignee. ^°^ 

204  Brewster  v.   Bours,  S  Cal.  ."102;  Smith  v.  Owens,  21  id.   11. 

2or3  llijrjjius  V.  Wortell,  18  Cal.  330. 

200  Smith  V.  Hariier,  5  Cal.  329. 

207  Frank  v.  Brady.  8  Cal.  47. 

20s  Montague  v.  Reinger,  11  Iowa,  503;  Bennett  v.  Crowell,  7 
Minn.  .38.'). 

2fio  White  V.  Low,  7  Barb.  204;  and  see  Allen  v.  Fosgate,  11  How. 
Pr.  218. 


661  PROMISSORY    NOTES,    ETC.  §§    1174-1177 

§  1174.   Indorsee  against  maker,  or  note  drawn  to  maker's  own 
order. 

I''or)n   No.   314. 

[Title.] 
The  plaintiit'  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18.  .,  at 

,  the  defendant,  by  his  promissory  note,  promised 

to  pay  to  bearer  [or  to  liis  own  order  J,   dollars, 

months  after  date  [or  on  demand] . 

II.  That  the  same  was  by  the  indorsement  of  the  defendant 
transferred  to  the  plaintiff. 

III.  That  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  Judgment.] 

S  1175.  Indorsement  essential.  It  would  seem  that  when  a 
note  is  drawn  to  the  drawers  own  order,  the  indorsement  by 
the  maker  is  necessary  to  pass  the  title.^^"  But  in  New  York 
it  is  provided  otherwise  by  statute.^^^ 

§  1176.  Subsequent  indorsee  against  maker. 

Form  No.  315. 

[Title.] 
Tlie  plaintiff  complains,  and  alleges: 
T.   [Allege  making  of  note.] 

II.  That  the  same  was,  I»y  the  indorsement  of  the  said  C.  D. 
and  L.  ^I.  and  N.  0.  [or,  and  others],  transferred  to  the  plaintiff. 
ITT.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demand  of  .Judgment.] 

§  1177.  Allegation  of  indorsements.  Tlic  nse  of  the  words 
"and  others"  will  jx-rhaps  obviate  the  nooossity  of  proving  the 
inflorsomenis,  wliioh,  if  stated,  must  bo  proved.  It  is  not  neces- 
sary to  state  all  the  inrlorsements,  as  possession  tiy  |il;iiiitill'  and 
production  at  the  trial  is  a  legal  presumplioTi  that  he  is  the 
owner,  and  for  value. ^^     Nor  to  allege  genuineness  of  indorsc- 

210  >rarfprson  v.  Tlioytrs.  TVaUp's  N.  V.  C.  20;  Bosanqiiot  v. 
AndorsDn.  (',   lOsp.    (.'!:  Sniitli   v.   Luslior.   ."  Tow.  OSS. 

2112  R.  S.  N.  V.  Vi?,\  and  si-p  T'IpIs  v.  .ToluiSdn.  .".  Hill,  112; 
>r.nKter8  v.  Barrots.  2  Oarr.  c^-   K.  71.".;  S.  ('..  <;i   Ene.  Cnm.  \,.  714. 

212  Smith  V.  Rfli.nnpk.  is  liaib.  .".U:  .F.-iimph  v.  Chnhn^rs.  <!  N.  Y. 
209;  Farrpll  r.  T>ovptt.  OR  Mp.  320;  28  Am.  Rep.  .W;  T>pe  v.  Whitney, 
149  ^rass.  44S:  .Tnhiisoti   v.   Haiu^vpr  Nat.   I'.niik,   fW  \\n.  WJ\. 


§§    IITS-IISO  roit.MS   OF  COMPLAINTS.  662 

monts.^^'^  ir  the  dorendaiit  on  the  trial  prove  loss  or  theft  of 
the  note  in  rebuttal  of  such  prcsuniptiou,  t-he  plaintilf  may 
prove  that  he  took  the  note  iu  good  iaith,  and  for  a  valuable 
consideration.'^'* 

§  1178.  The  same  —  against  first  indorse!*  —  indorsement 
special. 

Form  No.  3:6. 

[Title.] 
The  plaintilf  complains,  and  alleges: 

I.  That  the  defendant  indorsed  to  one  A.  B.  a  promissory  note 

made  by  one  C.  D.,  on  the day  of 5  18.  ., 

at ,  to  the  order  of  the  defendant,  for  the  sum  of 

dollars,  payable days  after  date. 

II.  That  the  same  .was  by  the  indorsement  of  the  said  A.  B. 
transferred  to  the  plaintiff  [or  that  the  said  E.  F.  indorsed  the 
same  to  the  plaintiff']. 

[Demand  of  Judgment.] 

§  1179.  The  same  —  ag-ainst  intermediate  indorser. 
Form  No.  317. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  a  promissory  note  made  by  one  A.  B.  on  the 

day  of ,  18 .  . ,  at  ,  to  the  order  of 

one    C.  D.,  for    the    sum    of    dollars    [payable 

days  after  date],  and  indorsed  by  the  said  C.  D. 

to  the  defendant,  was  by  the  indorsement  of  the   defendant 
transferred  to  the  plaintiff. 

II,  III,  and  IV.  [Same  as  in  form  No.  313.] 

[Demand  of  Judgment.] 

§  1180.   The  same  —  against  his  immediate  indorser. 

Form  No.  318. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

T.  That  the  defendant  indorsed  to  him  a  promissory  note 
made  by  one  A.  B.  on  the day  of ,  18.  ., 

SI"?  Pentz  V.  Winterbottom,  H  Den.  51. 

214  Catlin  V.  Hauser,  1  Dner.  .S09;  Rochester  v.  Taylor.  2."^  Barb. 
18;  Peacock  v.  Rhodes,  2  DonjrL  R.^"?;  4  Sandf.  97:  Millis  v.  Barber, 
1  Mee.  <Sr  TV.  42.5:  De  la  riiaumefto  v.  Bank  of  Enjrland.  9  Barn. 
&  Cress.  208:  2  Campb.  5;  Miller  v.  Race,  1  Burr.  4.52;  Grant  v. 
Vaughan,  3  id.  1516. 


663  PROMISSORY    NOTES,    ETC.  §§    llSl-1183 

at   ,  to  the  order  of  cue  C.  D.,  for  the  sum  of 

dollars,  payable   days  after  date, 

and  indorsed  by  the  said  C.  D.  to  the  defendant. 
11,  III,  and  iv.    [As  in  form  Xo.  313.] 
[Demand  of  Judgment.] 

§  1181.   The  same  —  against  all  prior  parties. 
form  No.  319. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18, .,  at 

,  the  defendant   A.  B.,  by  liis  promissory  note, 

promised  to  pay  to  the  order  of  the  defendant  CD 

dollars, months  after  date. 

II.  That  the  said  C.  D.  indorsed  the  same  to  the  defendant 
E.  P.,  who  indorsed  it  to  the  plaintiff. 

III.  That  on  the    day  of    ,   18.  .,  the 

same  was  presented   [or  state  facts  excusing  presentment]   to 
the  eaid  A.  B.  for  payment,  but  it  was  not  paid. 

IV.  That  notice  thereof  was  given  to  the  said  C.  D.  and  E.  F. 

V.  That  the  same  has  not  been  paid,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

§   1182.  Transfers  not  by  indorsement  —  by  assignee  of  note. 

Form   No.   330. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  Tbat  on  the   day  of   ,  18.  .,  at 

,  the  defendant,  Ijy  his  promissory  note,  promised 

to  pay  to  the  order  of  one  A.  B dollars 

days  after  date. 

II.  Tliat  said  A.  B.  sold  and  delivered  said  note  to  tlie  plain- 
tiff [for  a  valuable  consideration,  before  it  was  payable]. 

III.  That  the  defendant  has  not  paid  tbe  same,  nor  any  part 
thereof. 

[DE^[.\^•^)  f>r  .TrixiMi'.XT.  ] 

%  1183.  Allegations  of  assignment.  An  averment  tliat  tlie 
note  was  assigned  f)ii  tbo  day  or  nt  tlie  liriH'  of  its  execution  is» 
ftufTiciont.^'"  But  cnnsidcration  need  not  be  averred. ^'^  l>y  tlie 
assignment  of  tbe  note  alleged,  tbe  plaintiff  ae(|iiin'd   tille  to 

215  silver  v.  Henderson.  ?,  MeI.eaii.  1<:.':  ••nmiiare  Enili.irt  v.  f'aiiip- 
boll,  IlenipHf.  40:  Tlionison  v.  Aid  Associiilioii.  W.\  Iiid.  275);  Elchel- 
bcrcor  v.  Old  Nat.  P.fink,  lo.'?  Id.  40l. 

210  Wilson  V.  Podman's  Ex'rs.  ?,  Pranrji.  ID?,. 


S     II80  I'OKMS    OF    COMIM.AlX'rs.  ()()  t 

o 

the  noto,  and  the  action,  uihUm-  Ww  (\)di\  cdulil  he  maintained 
in  his  own  nanie.*^"  linU'r  llu'  coninion  law,  if  it  a})pcarcd 
from  the  ih'clai-ation  lliat  the  note  was  not  yet  })ayal)le,  a  de- 
murrer wouhl  lie."'*^  It'  the  coniphunt,  not  verified,  sets  out  the 
note,  and  avers  assignment  hy  i)ayee  to  phiintitl",  and  the  answer 
is  a  general  denial,  the  plaintiff  must  prove  the  assignment.^^'' 
In  an  action  against  the  maker  of  negotiable  paj)er  i)ayable  to 
bearer,  it  is  suflicient,  after  alleging  that  the  defendants  drew 
it,  to  allege  that  it  was  transferred  and  delivered  to  the  plaintiff 
without  saying  hy  whom,  if  it  be  also  alleged  that  the  transfer 
was  for  value,  and  that  tlie  plaintiff  was  the  owner.^^"  The  alle- 
gation on  a  note  payabU'  to  bearer  is  sufficient,  if  it  allege  that 
it  is  his  property,  and  that  tlie  amount  is  due."'  In  case  the 
note  is  payable  to  the  order  of  a  fictitious  person,  and  in  case  it 
is  payable  to  the  maker^s  own  order,  it  is  in  law  payable 
to  bearer."^  The  words  "  before  its  maturity,"  and  "  for  value," 
are  not  material  to  the  cause  of  action.  Unless  the  contrary  is 
shown,  the  indorsement  will  be  presumed  to  have  been  made 
before  maturity."^  In  an  action  upon  promissory  notes  as- 
signed to  the  plaintiff,  and  for  goods  sold,  the  plaintiff  may 
properly  allege  in  his  complaint,  on  his  "  information  and  be- 
lief," that  the  notes  were  executed  by  the  defendant;  and  he 
might  allege  in  the  same  way  that  the  goods  were  sold  to  the 
defendant,  for  they  might  have  been  sold  by  his  agent.  A  mo- 
tion to  strike  out  the  words  "  on  information  and  belief  "  should 
l)e  denied.^'* 

217  Savase  v.  Bevior,  12  How.  Vi:  lOG;  Hastings  v.  McKinley,  1 
E.  D.  Smith,  273;  and  see  Risins;:  v.  Teabout,  73  Iowa,  419;  Elinquist 
V.  Markoe.  4r,  Miun.  30.j;  Stevens  v.  Hannan,  8G  Mich.  30.') ;  24  Am. 
St.  Rep.  125. 

218  Waring  v.  Yatos,  10  Johns.  119;  T^owry  v.  Lawrence,  1  Cai.  69. 

219  Hastings  v.  Dollarhide,  18  Cal.  391. 

220  Mechanics'  Bank  v.  Straiten,  5  Abb.  Pr.  (N.  S.)  11. 

221  Dabney  v.  Reecl,  12  Iowa,  315. 

222Minet  v.  Gibson.  1  H.  Blackst.  5G9;  Plots  v.  .Johnson,  3  Hill, 
112. 

223pinkerton  v.  Bailey,  8  Wend.  GOO;  Pratt  v.  Adains,  7  Paige  Ch. 
615;  Nelson  v.  Cowing,  G  Hill,  330;  Case  v.  Mechanics'  P.anking 
Association,  4  X.  Y.  IGG;  and  see  .lames  v.  Clialiners.  G  id.  209. 

224  St.  John  V.  Beers.  24  How.  Pr.  377.  The  fact  that  all  of  the 
allegations  of  the  coniplaint  liy  an  assignee  of  a  note,  including  the 
allegation  of  noui)ayinent.  an-  prefaced  with  a  statemont  tl)at  they 
are  made  upon  information  and  belief  does  not  affect  the  cause  of 
action,  and  is  not  a  ground  of  general  demurrer.  Stanton  v.  Quinan, 
91  Cal.  1. 


(jtio  PEOillSSORY    NOTES,    ETC.  §§    118-±-1186 

§  1184.  Law  of  place.  An  aesignment  of  a  negotiable  instru- 
ment, as  between  ihu  parties  to  that  assignment,  is  subject  to 
the  law  of  the  place  where  the  assignment  is  made;  and  if  by 
such  law  the  assignment  is  void,  as  against  law  the  assignee 
can  exercise  no  right  under  such  assignment;-^  and  what  is  a 
discharge  of  a  contract,  in  a  place  where  it  was  made,  will  be 
of  equal  avail  in  everj-  other  other  place.  Except  that  where 
a  contract  is  to  be  executed  at  a  place  different  from  that  where 
it  is  made,  the  law  of  the  place  of  execution  will  apply .^''^ 

§  1185.  Note  with  a  blank  for  name  of  payee,  how  pleaded. 
Where,  in  an  instrument  for  the  payment  of  money,  the  name  of 
the  payee  is  left  blank,  with  the  intention  that  such  instrument 
may  be  transferred  by  delivery,  since  any  lawful  holder  may  fill 
the  l)]ank  vrith.  his  own  name  as  payee,  he  may  plead  it  in  an  ac- 
tion thereon  as  having  been  delivered  to  some  persons  unl<;nown, 
for  a  consideration  from  them  received,  and  as  liaving  thereafter 
come  lawfully  into  plaintiff's  possession,  and  that  he  is  the 
owner  thereof.-^  There  must  be  two  parties  to  every  promis- 
sory note,  a  maker  and  a  payee:  if  the  payee  named  is  not  in  esse 
there  is  no  note.^^ 

§  1186.  Partnership  and  individual  liability.  A  complaint 
would  seem  to  be  bad  v.-hich  shows  a  partnership  note  as  a  cause 
of  action  against  an  individual.  If  there  was  no  real  firm,  it 
should  have  been  alleged  that  the  note  was  signed  by  A.  B.,  in 
the  name  of  A.  B.  &  Co.  The  w^ords  "  &  Co."  indicate  a  firm. 
The  defendant  may  have  been  a  member  of  that  firm,  and  yet 
never  have  made  the  note,  nor  have  had  any  such  knowledge 
of  its  existence.  It  may  have  been  the  ol)jection  is  not  strictly 
for  defect  of  parties,  but  that  the  complaint  does  not,  on  its 
face,  show  an  individual  liability  on  tho  part  of  "A.  B.''^^ 

22.-5 .-,  East.  12.'}:  12  .Tolins.  142;  Powers  v.  l.yncli.  .".  Mass.  77;  Mc- 
riintifk  V.  riiiiiiuins,  :'.  Mfr.can,  1.^>S:  Diindns  v.  Howler,  id.  897. 

22fl  Van  Reimsdyk  v.  K;nio.  1  rjall.  .371;  and  see  Wayne  Co.  Sav. 
Rank  v.  Low.  SI  \.  Y.  '>m:  .".7  Am.  lUi..  .'►::.•'.:  Stni.lfs  v.  Nott,  12S 
\.  Y.  408;  20  Am.  St.  I!ep.  4.S0. 

227  iinl)l)anl  v.  N.-w  York  &  Ilarlcm  K.  U.  Co..  14  Abh.  Pr.  27."".. 

22S'\Vayman  v.  'rorroyson,  4  \cv.  124.  Tlie  hotia  fulc  Imldcr  of  a 
note,  wlion  tlie  ji.'iyee's  iiiimc  Is  loft  blank,  muHt  tnakp  liimsrlf  a 
party  to  sndi  note  by  aclnally  writing  Ids  name  in  llu»  blank  loft 
for  that  purpose  before  a  rrrf)very  ran  l>e  \v,\A  oti  siidi  instrument. 
Thompson  v.  Tfathbnn,  IS  Omu'.  202, 

229  Prlee  v.  McC'lave,  C  1>nei-.  .".11:  adiniiintr  S.  C.  ."i  id.  ('.70.  In 
an  action  upon  a  promissoiT  note  executed  in  the  linn  name  by  ono 
84 


§§    1187,1188  FORMS   OF   COMPLAINTS. 


666 


§1187.  Allegation  of  plaintiff's  title.  In  an  allegation  on  a 
note  payable  to  a  third  person,  the  right  of  plaintilf  should  be 
alleged.-^"  And  if  the  answer  does  not  deny  the  allegation,  de- 
fendant can  not  prove  that  payee  had  no  capacity  to  transfer.^^ 
Tims,  in  an  action  against  one  A.  B.,  as  the  maker,  and  others 
as  indorsers  of  a  promissory  note,  the  complaint  set  forth  a 
copy  of  the  note  signed  A.  B.  &  Co.,  npon  which  it  alleged  the 
defendants  were  indebted,  etc.  The  Avord  "  signed  "  was  pre- 
fixed to  the  name  of  the  makers,  and  the  word  "  indorsed"  was 
prefixed  to  the  name  of  the  indorsers  in  the  copy;  but  there 
was  Jio  otlier  allegation  that  the  defendants  made  or  indorsed 
the  note,  except  that  it  was  alleged  that  the  note  was  "  written," 
and  tliat  it  was  passed  to  the  plaintilf;  it  was  held  on  demurrer, 
that  the  making  and  indorsement  should  be  deemed  sufficiently 
alleged.^-  An  allegation  that  a  corporation  indorsed  and 
transferred  and  delivered  to  the  plaintiffs  the  note  sued  on, 
sufficiently  implies  that  the  transfer  was  made  pursuant  to  a 
resolution  of  the  board  of  directors,  if  such  ^resolution  is  neces- 
sary. So  an  allegation  that  after  the  transfer  the  company 
became  insolvent  and  was  dissolved,  is  an  indirect  statement 
that  it  was  solvent  when  the  transfer  was  made.^^  Yet  all 
necessary  allegations  should  be  directly  made. 

§  1188.  By  the  treasurer  of  an  unincorporated  company,  on  a 
note  payable  to  tlie  former  treasurer. 

Form  No.  321. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  Mountain  View  Homestead  Association  is  an  as- 
sociation consisting  of    persons,   in  the  city  of 

,  in  this  state. 

of  the  partners,  an  allegation  that  the  defendants  (naming  them), 
partners  doing  business  under  the  firm  name,  by  one  of  the  partners 
named,  made  and  executed  the  note,  sufficiently  implied  authority 
from  the  other  members  of  the  firm  to  make  the  note,  and  such 
authority  to  all  is  admitted  by  the  default  of  the  defendants. 
Redemeyer  v.  Henley,  107  Cal.  175. 

230  Montague  v.  Reineger,  11  Iowa,  r»03;  Bennett  v.  Orowell,  7 
Minn.  ?,m. 

231  Robbins  v.  Richardson,  2  P.osw.  248. 

232  riielps  V.  Ferguson,  n  Ah\y.  Pr.  200;  l.ee  v.  Ainslie,  4  id.  463; 
Bank  of  Geneva  v.  Gulick.  S  How.  Pr.  .11. 

2.33  Nelson  v.  Eaton,  I.''*  How.  Pr.  ?,or>\  Taylor  v.  Corblere,  8  id. 
385;  but  see  Montague  v.  King,  37  Miss.  441. 


667  PEOMISSORY  NOTES,  ETC.     §§  1189,  1190 

II.  That  at  the  time  hereinafter  mentioned,  one  A.  B.  was 
treasurer  thereof. 

III.  That  on  the day  of  ,  18. .,  the 

defendant  made  his  promissory  note,  of  which  the  following  is  a 
copy  [copy  of  note],  and  thereupon  delivered  the  same  to  said 
A.  B.,  as  the  treasurer  of  the  association,  who  was  duly  author- 
ized to  receive  it  on  their  behalf. 

lY.  That  said  note  was  given  for  the  benefit  of  the  associa- 
tion, and  that  it  is  the  property  of  the  members  thereof,  and 
owned  by  them  in  common. 

V.  That  this  plaintiff  is  now  the  treasurer  of  said  association, 
and,  as  such,  is  the  lawful  holder  of  said  note  on  and  for  their 
behalf. 

YI.  That  the  defendant  has  not  paid  the  same,  nor  any  part 
thereof. 

[Demaxd  of  Judgmext-J^^* 

§  1189.   On  a  note  payable  on  a  contingency. 
Form  No.  322. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18 . . ,  at 

,  the  defendant  made  and  delivered  to  the  plain- 
tiff his  promissory  note,   in  writing,   of  which  the  following 
is  a  copy: 
$.S00.  Shasta,  January  1,  1869. 

For  value  received.  I  promi.se  to  pay  to  A.  B.,  one  year  after 
date,  three  hundred  dollars,  in  case  the  proceeds  of  the  news- 
paper route  T  have  tliis  day  bought  of  liim  shall  exceed  the  sum 
f>f  one  thousand  dollars.  C.  D. 

IT.  That  the  proceeds  of  said  newspaper  route  did,  before  the 
expiration  of  said  year,  exceed  the  sum  of  one  thousand  dollai-s. 

Til.  That  no  part  of  the  said  note  has  bo-m  paid. 
[Demand  of  Judoment.] 

§  1190.  Condition  precedent.  WbfTc  a  note  was  mndo  pny- 
al)]e  on  the  contingency  of  tlio  confirmation  of  a  grant  of  land, 
the  confirmation  was  a  condition  precedent  to  the  payment  of 
the  note.^^     Where  tlie  complaint  on  a  promissory  note  shows 

234  iTomostend  assorintions,  undrr  the  statutes  of  ralifornia,  are 
Inr-orporatpfl  pursuant  to  tho  statute.  Hence  the  above  form  is  not 
strictly  applicable  In  this  state. 

235  Sanders  v.  Wlilfesldes.  10  Cal.  88. 


^§    1191-115)3  FORMS    OF    COMPLAINTS.  G68 

tliat,  by  agreement  of  the  parties,  its  payment  was  made  con- 
ditional npou  the  payment,  by  the  paye<.^  of  a  certain  debt  of 
the  payor,  such  payment,  is  a  condition  precedent  to  plaintilf's 
risiht  to  recover  on  the  note,  and  nuibt  be  averred  in  the  com- 
phiint  to  have  been  madc.^"' 

§  1191.   On  note  payable  in  chattels. 
Vonn  No.  323. 

[Title.] 
The  plaintilf  comphiins,  and  alleges: 

I.  That  on  tho   day  of    ,   18..,  at 

,  tho  defendant,  for  value  received  [or,  where  the 

consideration  is  expressed  in  the  note,  for  a  valuable  considera- 
tion therein  expressed],  made  and  delivered  to  plaintiff  his 
promissory  note,  of  which  the  following  is  a  copy: 

For  value  received,  thirty  days  after  date,  I  promise  to  pay 
A.  B.  five  himdred  dollars,  in  clothing,  at  the  usual  market 
rates;  the  same  to  be  delivered  within  two  days  after  the  same 
is  selected  or  demanded  by  the  said  A.  B.;  and  on  default 
thereof,  I  agree  to  pay  the  said  amount  in  money. 

January  1,  1869.  C.  D. 

II.  That  the  plaintiff  thereafter  demanded  of  defendant  the 
said  clothing,  but  defendant  refused  to  deliver  it,  or  any  part 
thereof,  to  him  [or  that  the  plaintiff  thereafter  performed  all 
the  conditions  of  the  same  on  his  part]. 

III.  That  no  part  thereof  has  been  paid. 

[Demand  of  Judgment.] 

§  1192.  Consideration.  Consideration  in  such  complaints  may 
be  specially  set  out,^^"  and  if  so  stated,  must  be  proved  aslaid.^'^^ 
It  must  be  averred,  when  the  instrument  itself  does  not  import 
a  consideration. ^^^  In  case  tlie  consideration  be  subject  to 
transfer  on  demand  of  payment,  the  plaintiff  must  allege  a 
transfer  or  tender  of  transfer.^^'' 

§  1193.  Demand.  Tlie  demand  should  be  made  at  the  place 
of  business  of  tho  maker  of  the  note,  when  tbe  note  is  payable 
in  chattels.^i     But  if  the  day  of  delivery  of  chattels  be  defined 

236  Rogers  V.  Cody,  8  Cal.  324. 

237  Ward  V.  Saelcndor.  9,  Cai.  20.^. 
238.Teromp  v.  Whitney.  7  .Tolins.  321. 
239  Rpear  v.  Downinir,  34  Barb.  "^2. 
240ConsidprnTit  v.  Bripbane,  14  TTow.  Pr.  487. 

241  Vance  v.  Bloomer.  20  Wend.  196;  Rice  v.  Churchill,  2  Den.  145. 


()69  PROillSSORY    NOTES,    ETC.  §§    1191-119) 

in  the  note,  as  "•  on  or  before ''  a  day  named,  no  demand  is 
necessary,  unless  the  holder  exercises  an  election  as  to  choice 
of  goods.^'*^  Where  the  payee  of  a  note  of  forty  dollars,  payable 
on  demand,  in  "  hemlock  bark,  at  the  going  price,"  in  the 
summer  of  18G3,  requested  the  maker  to  have  tne  bark  peeled 
in  the  course  of  the  summer  (the  peeling  season),  and  delivered 
the  next  winter,  which  the  maker  agreed  to  do,  but  the  bark 
was  not  delivered:  it  was  held  that  tbe  demand  was  appropriate 
to  the  note,  and  that  on  defendaufs  failure  to  furnish  the 
bark,  the  payee  could  recover  on  the  money  counts.^"*^ 

§  1194.  Effect  of  indorsement.  The  indorser  of  such  a  note 
has  no  right  to  insist  on  a  previous  demand  on  the  maker,  but 
is  immediately  liable  thereon.^^ 

§  1195.  Maturity.  It  seems  such  notes  are  generally  due  on 
demand,  and  a  special  demand  is  necessary.^'' 

§  1196.  Measure  of  damages.  Upon  pucli  notes,  the  measure 
of  damages  is  the  sum  of  money  named.^^ 

§  1197.  Nonpayment.  The  allegation  of  nonpayment  of  the 
money  is  alone  sufficient.^"^ 

242  Johnson  v.  Seymour,  19  Ind.  24. 

243  Reed  V.  Stui-tevant,  40  Vt.  .521.  A  complaint  set  forth  certain 
Instruments  in  the  form  of  promissory  notes  which  stated  that  they 
were  ^'iven  for  cei-tain  i)roi)ei-ty,  title  to  which  was  to  remain  in  the 
vendor  until  all  the  notes  were  paid,  and  that  payment  was  de- 
manded and  refused  when  tliey  ]>ecanie  due  and  an  assignment 
thereof  to  tlie  plaintiff.  It  was  held  on  demun-er,  that  as  tliere 
was  no  stipulation  in  these  instruments  for  the  pei-formance  of 
any  act  by  either  party  upon  which  liability  to  pay  them  was  de- 
pendent, an  allegation  of  performance  was  not  necessar>',  and  that 
tlie  comidaint  stated  facts  sufficient  to  constitute  a  cause  of  action. 
I'.candiia.s  v.  W:ilcl<,  4.5  X.  Y.  St.  Kep.  7:  17  N.  Y.  Sni)p.  710. 

244  Seymour  v.  Van  Slycl<.  s  A\Cnd.  40:',;  aflirmed,  sub  nam-  Stone 
r.  Seymour,  1.5  id.  10. 

24r)  T.olidell  v.  IIoi)lciiiR.  .5  Cow.  .510;  but  see  Tlarns  v.  Craliam,  4  Id. 
1.52:  1:5  Am.  Dec.  804. 

246  Pinney  v.  r.leason.  .5  Wend.  ^'.)?>\  21  Am.  Dec.  22;i:  Kockwell  v. 
Rockwell,  4  Hill,  104:  and  see  f:iH)ert  v.  Danforth,  0  N,  Y,  (2  Seld.) 
58.5. 

247  Rockwell   V.  Rockwell.  4   Hill,   104. 


§^    ll[»b-l:300  i'OKMti   Oi-    COMrLAiiNTS.  G70 

§   1198.   On  guaranties  —  against  maker  and  guarantor  of  a 
promissory  note. 

Form  No.  324. 

[Title.] 

The  plaintill;  complains,  and  alleges: 

I.  That  on  the    day   oi'    ,   18..,  at 

,  the  defendant  A.  B.,  and  C.  1).  as  his  security, 

by  their  promissory  note  promised  to  pay  to  the  order  of  one 
E.  F.,   dollars  [ days  after  date]. 

II.  That  the  said  E.  ¥.  indorsed  the  same  to  the  plaintiff. 

III.  That  on  the day  of ,  18. .,  the 

same  was  presented  [or  state  facts  excusing  presentment]   to 
the  said  A.  B.  for  payment,  but  was  not  paid. 

IV.  That  notice  thereof  was  given,  to  the  said  C.  D. 

V.  That  the  defendants  have  not  paid  the  same,  nor  ainy  part 
thereof. 

[Demand  of  Judgment.] 

§  1199.  Certificate  of  deposit.  Where  the  indorsee,  on  pay- 
ment to  him  of  the  amount,  guarantees  the  genuineness  of  the 
signature,  which  is  afterw'ards  found  to  be  a  forgery,  and  the 
payee  recovers  from  the  makers  the  amount  of  certificate  and 
costs,  the  maker  may  recover  from  the  indorsee  and  guarantor 
the  costs  of  the  former  action.^^* 

§  1200.  Demand  and  notice.  Wliere  it  is  agreed  "  that  if  the 
holder  should  not  be  able  to  collect  the  note  from  the  maker 
by  due  course  of  law,  then  the  guarantor  would  be  responsible 
withont  requiring  notice,"  it  is  a  waiver  of  demand  on  the 
maker.^''  A  note  indorsed,  "  I  guarantee  the  collection  of 
the  within  note  when  due,"  contemporaneous  with  the  signing 
of  the  note,  constitutes  a  guaranty,  and  the  party  is  entitled 
to  the  legal  notice  of  nonpayment  before  he  can  be  charged  on 
his  contract. ^^"^  A  complaint  is  sufficient  which  treats  the 
maker  and  guarantor  of  a  note  as  joint  makers,  and  contains 
no  allegation  of  demand  and  notice.^^  "  I  assign  the  within 
tf)  K..  for  value  received,  and  bind  myself  to  pay  it  promptly 
after  maturity,"  indorsed  upon  a  note,  is  a  guaranty,  and  de- 
mand and  notice  are  not  npcessary  to  fix  the  guaarantor's  lia- 

248  Mills  V.  Barney,  22  Cal.  240. 
249Barkiis  v.  Shipliord,  11  Wend.  629. 
zso  Roeves  v.  ITowp.  16  Cal.  l.'>2. 
251  LIghtstone  v.  Laurencel.  4  Cal.  277. 


671  PROMISSORY   NOTES,   ETC.  §§    1201-1303 

bility  on  failure  of  the  makers  to  pay  at  maturity.^^    So  in 
case  of  a  lease.^^^ 

§  1201.  Discharge  of  svirety.  Mere  extension  of  time  to  the 
maker  is  not  sutticieut  to  discharge  a  surety  or  indorser,  unless 
it  Asill  be  such  as  \\ill  suspend  the  right  of  action  against  the 
maker.^'*  The  failure  of  a  liolder  of  a  note  to  sue,  when  re- 
quested by  the  surety,  does  not  in  general  operate  to  discharge 
the  liability  of  the  latter.^^  If  the  surety  desires  to  protect 
himself,  he  must  pay  the  note,  and  proceed  against  the  prin- 
cipal.256 

§  1202.  Grantor,  who  is.  One  who  puts  his  name  upon  a 
promissory  note,  out  of  the  usual  course  of  regular  negotiability, 
is  a  guarantor,  whether  inscription  is  in  blank  or  accompanied 
by  the  words,  "  I  guarantee,"  etc.^^  Or  if  the  indorser  ac- 
companies his  signature  with  the  words,  ^'  I  hereby  waive  de- 
mand, notice  of  nonpayment,  and  protest,"  he  is  a  guarantor.^® 
Where  the  holder  of  a  note,  after  its  maturity,  obtained  from  a 
stranger  a  guaranty  of  its  payment  within  sixty  days  from  date 
of  guaranty,  there  is  no  presumption  of  law  that  the  guaranty 
was  taken  for  the  benefit  of  the  maker,  or  that  it  extended  to 
him  the  time  of  payment. ^^® 

§  1203.  Joint  liability.  Each  ane  who  writes  his  name  upon 
a  promissory  note  is  a  party  to  it,  and  each  party  an  original 
undertaker,^"  as  the  note  itself  imports  consideration.  Where 
a  party  signs  a  joint  and  several  note,  he  is  not  entitled  to  notice 

252  Baker  v.  Kelly,  41  Miss.  fR30;  93  Am.  Dee.  274. 
2.-.:^  ^•oltz  V.  Harris.  4^)  111.  l;%.n. 

2S4  Williams  v.  Ck)villau(l,  10  Cal.  410;  Draper  v.  Roraoyn,  18  Barb. 
IfiO. 
2-w  llartman  v.  Rurlintrame,  9  Cal.  r>ru. 
250  Id. 

257  Kipcs  V.  Waldo.  2  Cal.  4Sr>;  ->^^  Am.  Dec.  .^"0;  Chit  on  Cont. 
.^.97:  r,  Kent's  Coin.  121;  soe  Fnllerton  v.  Hill,  4S  Kan.  .'..".8;  Talloy  v. 
Hnrtis,  4.')  Kan.  l.'l. 

2.'.s  Forrl  v.  IIcndrickH.  .'54  Cal.  07."',;  see.  alsox  Brady  v.  Ii»\vnolds, 
13  id.  31;  Story  on  I*rom.  \oto9.  8  434:  Fell's  Law  of  (Inar.  &  S?nr. 
1;  Hall  v.  Farmer,  r.  Den.  484;  Miller  v.  (Jaston.  2  Hill.  191;  Meecli 
V.  Chnrehill.  2  Wend.  r,p,U;  Bnek  v.  Daveniwrt.  etc.,  Sav.  Bank,  29 
Nob.  407;  20  Am.  St.  Ilep-  392;  Heard  v.  DulAique,  etc.,  Bank,  8 
Neb.  10;  30  Am.  Bej).  811. 

280  Williams  V.  Covlllnud,  10  Cal.  419. 

2«o  Rlgga  V.  Waldo,  2  Cal.  485;  50  Am.  Dec.  350. 


5j§    r..'L'1-r.iOl)  KOK.MS    Ol'    COM  n.A  IN  IS.  07^ 

of  iionpayineul,  though  in  iaet  he  signed  as  surety.-"^  When 
a  promissory  note  is  signed  by  two  persons  in  the  sajne  manner, 
with  nothing  to  show  that  one  was  surety,  one  of  such  signers 
can  not  set  up  that  he  was  a  surety  only.^*^-  Where,  in  the 
body  of  the  note,  one  party  signs  as  principal,  and  one  as  surety, 
both  are  liable.-'^ 

§  1204.  Liability  of  guarantor.  The  liability  of  an  indorser 
is  a  guaranty  that  he  will  pay,  if  the  maker  does  not,  upon  pre- 
sentment, if  he  receives  notice.  And  the  liability  of  a  guaran- 
tor is  the  same  and  he  is  entitled  to  all  his  rights  stricti  juris.^* 
AVhcre  the  defendant  signed  a  negotiable  note,  as  surety,  and 
delivered  it  to  his  principal,  on  the  condition  that  it  should 
not  be  delivered  to  the  payee,  or  negotiated,  until  another  party 
should  have  signed  the  same  as  co-surety,  and  it  w^as  delivered 
Avithout  such  other  signature,  but  the  payee  did  not  know  of 
such  condition,  and  there  was  nothing  on  the  face  of  the  note  to 
put  him  on  inquiry,  it  was  held  that  defendant  was  liable.^*'^ 

§  1205.  Nature  of  contract.  A  guaranty  is  an  independent 
contract,  which  docs  not  suspend  any  right  of  action  of  the 
holder  of  the  note  against  its  maker.^^  An  indorsement  or 
a  guaranty  of  a  note  is  an  agreement  of  itself,  a  new  contract 
undertaken  for  another.^*^^  The  contract  of  indorsement  is 
primarily  that  of  transfer;  the  contract  of  guaranty  is  that  of 
secnrity.^^'^ 

§  1206.  Notice  of  protest.  In  California,  prior  to  the  adop- 
tion of  a  Civil  Code,  a  notice  of  protest  was  as  essential  to 
charge  a  guarantor  as  an  indorser,^^^  as  the  liability  of  a  guaran- 
tor was  the  same  as  that  of  the  indorser,  and  he  was  entitled  to 
all  his  rights  stricti  JHrisP^     Subsequent  to  the  adoption  of 

261  Hartman  v.  Burlinpame,  9  Cal.  .557;  Dane  v.  Cordnian,  24  Id. 
1.57;  8.5  Am.  Dec.  .5.3. 

262  Kritzor  v.  Mills,  9  Cal.  21. 

263  lluinplu-eys  v.  Crane,  .5  Cal.  173. 

264  Riggs  v.  Waldo,  2  Cal.  485;  .50  Am.  Deo.  3.5G:  Ford  v.  Hendricks, 
34  Cal.  673;  Pierce  v.  Kennedy,  5  id.  148. 

2ft.'>  Morriam  v.  Rookwood,  47  N.  H.  81;  see  Iloboken  City  Bank 
V.  Pheli>s,  .34  Conn.  92. 
260  Williams  v.  Covillaud,  10  Cal.  419. 

267  And  V.  Mafrruder,  10  Cal.  282. 

268  Brady  v.  Reynolds.  13  Cal.  31. 

269  Rijrps  V.  Waldo,  2  Cal.  485:  .50  Am.  Dec.  356. 
270Geiger  v.  Clark.  13  Cal.  .580;  Crooks  v.  Tnlly,  50  id.  254. 


673  PEOMISSOEY   XOTES,   ETC.  §§    1207-1209 

the  Civil  Code,  a  guarautur  is  not  entitled  to  demand  or  notice.-^^ 
"  1  hereby  waive  demand,  notice  of  nonpayment  and  protest, 
Q.  K.,''  indorsed  on  the  note  of  a  third  party  before  it  is  de- 
livered by  the  maker,  is  a  guaranty,  and  not  within  the  Statute 
of  Frauds.2'2 

§  1207.  Primary  liability.  One  who  signs  a  note  to  pay  ab- 
solutely at  a  certain  time  is  making  his  own  contract,  although 
he  puts  "  surety  "  with  his  name.^^  When  in  consideration  of  a 
conveyance,  a  party  agrees  to  pay  an  outstanding  note  of  his 
vendor,  and  writes  his  name  on  the  back  of  the  note  as  a  mem- 
orandum of  snid  agreement,  he  is  primarily  liable  for  the  note.^'^* 

§  1208.  Surety  —  security.  The  word  "  surety  "  does  not  m 
any  way  control  the  words  of  the  note,  as  between  the  payor  and 
payee. -"^  Where  three  parties  purchased  property  together,  one 
taking  an  undivided  half,  and  each  of  the  others  taking  an 
undivided  fourth,  and  for  the  purchase  money  executed  their 
joint  note,  the  purchaser  of  the  half  interest  was  a  principal 
and  cosurety  with  the  others  for  their  interests.^^"  Where  a 
promissory  note  was  made  jointly  by  A.  and  B.  and  delivered 
to  C,  the  consideration  being  delivered  to  A.  alone,  and  as  be- 
tween A.  and  B.,  the  latter  signed  as  surety  for  A.,  who  had  de- 
jjosited  collateral  security  with  C,  of  which  transaction  as  a 
whole  C.  had  notice  when  the  note  was  executed,  as  between 
the  makers  and  the  payee,  A.  and  B.  were  principals,  and  liable 
as  such  to  C.^^^ 

§  1209.  Trustee.  Where  a  party  signs  a  promissory  note,  with 
the  addition  to  his  name  of  the  word  ''tn;stoe,"  he  is  per- 
sonally liable."^''       A  note  stating  that  "we  the  undersigned, 

271  Civil  Code.   S  2807.     Under  tlie  Code,  the  peneral  nilo  la  that 
jriianintora  are  liable  Inimedintely   upon   default  of  the   principal, 
without   demand    or   notiee,    unless   they    are   In    effect    Indorsers. 
Chafoin  v.  RU-li,  77  Cal.  470. 

272  Ford  V.  HendrickH.  .'U  Cal.  (i7.S. 
27.3  And  v.  Ma;;ruder.  10  Cal.  282. 

274  Palmer  v.  Tripp's  Adn)'r.  8  Cnl.  m. 

275  And  V.  MatrrndfT.  10  Cnl.  2.S2. 
27fif'iii|.riian    v.    Mf>rrill,   20  Cal.    1.30. 
277  r>aiiion  V.  I'ardow.  ?A  Cal.  278. 

37fi  Conner  v.  Clark.  12  Cal.  108;  7.3  Am.  Dec.  52?).    A  note  payable 
to  the  order  of  ;i  person  as  "  trustee."  Is  held  to  be  nonneKOllable. 
Third  Nat.  Bank  v.  Lanpe.  .''.1  Md.  138;  34  Am.  Ilep.  301. 
Vol.  T— 85 


§§  l'^10-l;;Jlla         roiuia  oi'  LOAirLAi^ixa.  6H 

iruslees  ol,  etc.,  on  behalf  oi  the  whole  board  oi'  trustees  of  said 
ucsociatiou,  promise  to  pay,"  etc.,  and  signed  wilhoul  qualilica- 
lioii  by  two  persons  having  authority,  is  a  note  oi"  the  associa- 
tion.'^** 

§  1210.  What  contract  imports.  The  difference  between  a 
maker  and  indorser  or  guarantor  is  that  the  contract  of  the  first 
imports  an  unconditional  obligation,  that  of  the  last  a  con- 
ditional ohligation.2^" 

§  1211.  When  action  lies.  Where  a  guaranty  is  given  in  con- 
sideration of  an  extension  of  time  to  the  maker,  the  holder  of 
the  note  must  exhaust  his  remedy  on  the  original  demand,  and 
can  then  compel  the  guarantor  to  make  good  the  deficiency. ^"^^ 
A  creditor  having  legally  fixed  the  liability  of  the  guarantor  is 
not  bound  to  sue  the  debtor  in  order  to  hold  the  guarantor. 
The  guarantor  should  pay  the  debt,  and  then  sue  the  principal, 
or  file  a  bill  to  compel  the  creditor  to  sue.^^ 

§  1211a.  Action  on  note  —  variance.  In  an  action  upon  a 
promissory  note,  in  wliich  the  complaint  alleges  that  the  plain- 
tiff had  loaned  the  defendant  the  money,  there  is  no  variances 
when  the  evidence  shows  that  the  money  had  been  loaned  to 
the  defendant  by  the  plaintiff's  wife,  but  was  in  fact  the  plain- 
tiff's money.^^  A  promissory  note  is  not  itself  the  payment  of 
a  debt,  but  is  the  written  evidence  of  the  debt,  and,  therefore,  in 
an  action  to  recover  money  due  on  a  nonnegotiable  instrument, 
where  the  answer  averred  facts  showing  an  indebterlness  from 
the  plaintiff's  assignor  to  the  defendant  for  money  loaned,  the 
fact  that  such  indebtedness  was  proved  to  be  evidenced  by  a 
note  does  not  create  a  variance  between  the  pleadings  anrl 
proof.^^  Where  the  complaint  allegerl  that  the  defendant  mado. 
executed   and  delivered   his  promissory  note  to  the   Portland 

Savinprs  Bank,  a  note  navable  to   can  not  be  re- 

reived  in  evidence  under  pucb  allegation .^'^ 

279  Haskell  v.  Cornish.  1,3  Cal.  4.5. 

2flO  Aud  V.  Magrnrlpr,  10  Cal.  2S2. 

281  Donahue  v.  Cift.  7  Cal.  242;  but  see.  also,  Gross  v.  Parrott, 
10  \(\.  143. 

ssawhitinjr  v.  Clark.  IT  Cal.  407. 

2-«.'.  Pillinpr  v.  Morso,  r>  Wash.  St.  797. 

2«4  Kleinsohinidl   v.  Kloinschmidt,  1?.  'Mont.  64. 

2R.'5  Thompson  v.  Pvatlilnm.  IS  Orocr.  202.  Tt  is  not  n  vnrinnce  to 
offfT  in  evidenoe  a   note  sufd   on.   althouirh,   besides  bein^  signed 


(>T5  PKOMISSORY    NOTES,    ETC.  §    I'-illb 

§  1211b.  Demand  note  —  stipulation  for  attorneys'  fees.  The 
maker  of  a  demand  note,  which  contains  a  stipulation  for  pay- 
iueut  of  a  reai>onable  attorney's  fee  and  all  legal  expenses  in  case 
the  note  is  collected  by  suit,  is  not  in  default,  as  respects  the 
liability  for  such  special  damage,  until  there  has  been  a  breach 
of  the  contract  according  to  its  terms,  by  failure  to  pay  upon 
demand;  and  a  denial  that  payment  of  the  note  was  ever  de- 
manded raises  a  material  issue  as  to  sucli  liability,  which  will 
preclude  a  judgment  upon  the  pleadings  for  an  attorney's  fee.^*" 
The  attorney's  fees  being  in  the  nature  of  special  damage  au- 
thorized by  the  contract  to  be  recovered  in  addition  to  general 
damages,  must  be  specially  averred.^'^ 

l)y  the  defendant  as  maker,  it  contains  an  indorsement  over  the 
signatures  of  others  as  comalsers.  Hinchman  v.  Railway  Co.,  14 
Wash.  St.  349. 

a^cPrescott  v.  Grady,  91  Cal.  518. 

287  Id. 


SUBDiYISIOISr  FOURTH. 

FOR  DAMAGES  ON   BKEACU  OF   GONTRAOT. 


CHAPTEK  I. 

builders'  contkacts. 

§  1212.  By  contractor,  on  special  contract,  modified,  with  a 
claim  for  extra  work. 

Form  No.  325. 

[Title.] 

The  plaintiff  complains,  and  alleged: 
First. —  For  a  first  cause  of  action: 

I.  That  on  the    day  of    ,   13..,  at 

,  the  defendant  under  his  hand  and  seal  made 

a  contract  in  writing  with  the  plaintiff,  of  which  the  following 
is  a  copy  [copy  contract]. 

II.  That  he  has  duly  performed  all  the  conditions  thereof 
on  his  part,  except  that,  at  the  request  of  the  defendant,  he 
finished  the  building  with  hard  finish  instead  of  cloth  and 
paper,  for  which  the  defendant  promised  to  pay  a  reasonable 
sum  in  addition  to  the  price  named  in  the  contract.  That  by 
the  consent  of  the  defendant  the  time  for  completing  said 
work  was  extended  for  one  month  beyond  the  time  fixed  for 
the  contract,  to-wit,  to  the day  of ,  18 . . 

III.  That  the  plaintiff  on  his  part  duly  performed  all  the 
conditions  of  said  contract  as  modified. 

IV.  That  the  sum  of   dollars  is  a  reasonable 

payment  to  be  made  in  addition  to  the  price  named  in  said 
contract  for  finishing  the  building  with  hard  finish  instead  of 
cloth  and  paper. 

Y.  That  on  the    day  of    ,   18 . . ,   at 

the  plaintiff  demanfled  of  the  defendant  payment 

of  the  sum  of   dollars,  the  amount  due  on  said 

contract  as  modified. 

VT.  That  he  has  not  paid  the  same  nor  any  part  thereof. 


ail  BriLDERS'    COXTEACTS.  §§    1213,    121i 

Second. —  For  a  second  cause  of  action: 

I.  That  between  tJie  day  of  ,  18 . ., 

and  the day  of ,  18 . . ,  at , 

the  plaintiff  rendered  further,  services  axud  furnislied  materials 
to  the  defendant,  at  his  request,  in  [here  state  v/ork  and  mate- 
rial], for  which  the  defendant  promised  to  pay. 

II.  That  the  same  are  reasonably  worth dollars. 

III.  That  he  haij  not  paid  the  same,  nor  any  part  tliereof. 

[Demand  of  Judgment.] 

§  1213.  Essential  averments.  Under  the  rules  of  pleading 
established  by  the  Code,  the  party  to  a  written  contract  for 
the  erection  of  the  building,  who  has  performed  his  part  of  it 
by  the  erection  of  the  same,  can  not  bring  an  action  against  the 
other  party  who  failed  to  fulfill,  for  work  and  labor  done 
and  performed;  but  the  complaint,  must  aver  the  execution  of 
the  contract,  its  terms,  the  performance  of  the  same  on  the  part 
of  the  plaintiff,  and  the  nonperformance  l)y  the  other  party, 
and  the  damages  thereby  sustained.^  Tbe  contract  should  be 
set  forth  in  the  complaint,  together  with  the  necessary  allega- 
tions of  deviations,  performance,  etc.,  which  the  plaintiff  must 
prove,  instead  of  the  general  allegation  that  tlie  defendant  is 
indebted  for  work  and  labor,  etc.^  The  plaintiff  may  plead  as 
follows:  1.  He  may  set  forth  the  contra>f;t  according  to  its  legal 
effect,  a«  modified,  and  then  allege  that  he  has  duly  "performed 
nil  the  considerations  thereof  on  his  part;"  or,  2.  He  may  set 
forth  the  contraT-t  //;  Iwcc  verba,  and  then  state  that  he  has  duly 
performed,  etc.,  all  the  conditions  thereof  on  his  part,  except 
thnt  in  certain  points  it  was  snhseqnently  modified,  and  that  in 
those  points  he  fnlfillod  it  according  to  the  modifieations.^ 

§  1214.  Abandonment  of  contract.  If  tho  C/)ntraot  for  the 
erection  and  comidr-fion  of  a  building  is  entire,  and  the  con- 

1  OTonnor  v.  Ttln^'loy.  2(',  Cal.  D. 

2Tfl. 

3  Smith  V.  Rrown.  17  P.arb.  4r?1 :  aro.  alsn.  Tlatr.Ii  v.  Tpot.  2r^  \(\. 
Tu~,:  Wfck.s  V.  O'P.rion,  111  N.  V.  100-:  Tx>sran  v.  Rcrksliiro  .Vpartnient 
.Afisno..  IS  N.  y.  Siipii.  HII.  A  contraflnr  Is  not  lioiiiid,  ;ir  a  mattor 
of  plpadinir,  to  dr-dnro  npfni  tlip  contrnot.  Imf  may  «1rc,]an>  irener- 
nllv  for  tlie  matorials  furnisliofl  an<1  work  pcTfornii-d.  and  on  tho 
trial  tlip  pontraft  may  lip  used  fn  dptonidii'^  tlip  ritrlits  of  t.lip  iiartlPH. 
TTncan  v.  Lalmbcpr.  Of,  N.  Y.  (Mil;  Haillcy  v.  Mnrllia,  :5f>  N.  Y.  Supp. 
212. 


§§    1215-1217  FORMS    OF    COMPLAINTS. 


G78 


traelur  abaudoii^s  tlu'  wurk  bd'ore  it.  is  completed,  he  loses  the 
right  which  he  would  have  had  to  the  full  coinpensatiou 
agreed  on.'* 

§  1215.  Acceptance  by  architect.  Where  a  contract  for  al- 
terations ajid  repairs  to  a  building  was  to  be  performed  in  a 
certain  maimer,  particularly  specitied,  "  subject  to  acceptance 
or  rejection  by  E.  W.,  architect,"  and  payment  only  to  be  made 
when  the  work  was  completely  done  and  accepted,  it  was  held 
that  the  provision  for  acceptance  was  only  an  additional  safe- 
guard against  defects  not  discernible  by  an  unskilled  person, 
and  the  architect  could  not,  by  accepting  a  different  class  of 
work  from  that  provided  for,  or  inferior  materials,  bind  the 
owner  of  the  building  to  pay  for  them.^  The  architect's  ap- 
proval or  disapproval  must  be  based  upon  the  requirements  of 
the  contract.® 

§  1216.  Acceptance  of  work.  Where  the  work  has  been  ac- 
cepted and  approved  by  the  superintendent,  under  a  contract 
for  repairs  of  streets,  it  is  a  full  perfonnance  of  the  contract; 
and  if  the  parties  are  dissatisfied  they  should  have  appealed  to 
the  board  of  supervisors.  This  was  their  only  remedy."^  That 
the  defendants  demanded  possession,  which  the  plaintiff  deliv- 
ered up  to  them,  is  not  a  sufficient  averment  of  acceptance 
on  the  part  of  the  plaintifl'.'^  Where  the  work  was  to  be  done 
to  the  satisfaction  of  tlie  defendant,  it  is  not  necessary  to  aver 
that  it  was  done  to  his  satisfaction,  if  it  is  shown  to  be  accord- 
ing to  the  contract;  but  if  the  contract  requires  it  to  be  done 
to  the  satisfaction  of  third  persons,  the  plaintiff  must  aver  that 
it  was  done  to  thoir  satisfaction.^ 

§  1217.  Payment  —  terms  of.  When,  by  flio  terms  of  the  con- 
tract, payment  was  to  be  made  upon  a  certificate  of  the  archi- 

4Rlythp  V.  Ponllne.v,  ."^l  Cal.  2SS. 

K  Olaoins  v.  Black.  ."►0  X.  Y.  14.5;  10  Am.  Rep.  449. 

8  Doyle  V.  Halpin.  .33  N.  Y.  Sur.  (1  .T.  &  Sp.)  .3.52.  For  rases 
rlepfnflintr  on  si)er'ial  facts,  see  Killiji  v.  :Metzen,  .50  N.  Y.  6.58;  Rhute 
V.  Hamilton.  3  Daly,  4fi2:  soe.  also,  Blethon  v.  Blake,  44  Cal.  117; 
Ray  V.  RotPlor.  40  y\n.  App.  213;  Solienoke  v.  Rowell,  3  Abb.  N.  0. 
42:  Wilfox  v.  StPi)lifnson.  30  Fla.  .377. 

7  Emery  v.   Bnulfonl.  20  Cn\.  7.5;  Taylor  v.   Palnior,  31   Cal.   248; 
Beauflry  v.  Valrle/.  32  Cal.  27S. 
s  Smith  r.  Brown,  17  Barb.  431. 

9  Butler  T.  Tucker.  24  Wend.  447. 


679  builders'  coxtkacts.  §§  1^18,  l;il9 

tect,  "  that  the  work  was  fully  and  completely  finished  according 
to  the  specitication,"  the  giving  of  a  oertiticate  to  that  effect 
must  be  averred  and  proved.^^  But  where  payment  was  to  be 
made  upon  a  certificate  of  an  officer,  the  complaint  should 
allege  that  he  had  made  such  certificate.  It  need  not  be  averred 
also  that  the  work  had  been  performed.^^  And  on  a  written 
contract  to  build  certain  bridges  for  a  railroad  company,  to  be 
paid  for,  one-fourth  in  cash,  and  the  rest  in  stock,  no  time  and 
]jlace  of  payment  stated,  the  payment  could  not  be  required 
until  the  terms  of  the  contract  were  complied  with,  or  at  least 
that  payment  on  any  bridge  was  not  due  until  such  bridge  Avas 
coiapleted.  And  where  no  time  or  place  is  fixed  by  the  agree- 
ment, express  or  implied,  a  demand  is  essential  to  base  an 
action  upon.^^  But  after  performance  in  such  a  contract,  an 
action  will  lie  without  proof  of  the  demand  of  the  stock.^^ 

§  1218.  Enlargement  of  time.  The  time  of  performing  a 
simple  written  contract  may  be  enlarged  by  parol.^*  But  not 
unless  the  parol  contract  be  upon  sufficient  consideration.^^  And 
the  extension  is  not  an  alteration  necessarily  material  to  the 
cause  of  action.^*'  But  after  a  contract  is  modified,  the  declara- 
tion must  not  be  upon  the  original  contract  alone.^'^ 

S  1219.  Performance  —  averment  of.  Building  contracts  need 
not  be  literally  complied  with  in  every  punctilio,  as  a  condition 
to  recovery.^**  Thus  where  there  was  a  special  contract  to  build 
a  house  liy  a  certain  day,  which  was  not  fulfilled,  owing  to 
various  circumstances,  and  the  contractor  brought  a  suit  setting 
forth  the  special  contract  and  averring  performance,  it  was 
erroneous  in  the  court  to  instruct  the  jury  to  find  for  the  plain- 
tiff, as  the  work  was  not  finisherl  1)y  the  appointed  day,  though 
it  was  completed  after  the  ajipointed  time  with  the  knowledge 
and   approbation   of  the   defendant.^"     But  in    a   contract   for 

'0  Smith  V.  Rriir^s,  .'?  Tx-n.  7.''.:  Wyc-koff  v.  Meyers.  -14  N.  Y.  14.3. 

11  Tnw.sloy  v.  Olds.  r>  flark  do-wa),  T,2i\. 

i2BocHly  V.  Ttntlahd  &  Bnrlinfrton  T{.   It.  fo..  .3  TUiilehf.  21'>. 

13  ITallilian  v.  Conioration  of  WasliiiiL'-1<m.  4  rraiicli  (\  C.  r.04. 

14  12  P.;irli.  P,>T,:  Meeli.-in  v.  Wllllama.  .30  ITow.  Pi'.  7'S. 
in  Tinker  v.  rierafrlity.  1  E.  D.  SniUli.  OST. 
inrrane  v.  ^ray^a^fl.  12  M'encl.  40S. 

17  Freeman  v.  Aflains.  9  .Tolms.  11.''i. 

5"  Smitli  V.  rjnjrpvty,  4  Barb.  (!14.     Snfllcient  avirnienl  of  perform- 
anee.     See  Davis  v.  Badflers.  n.f>  .\ln.  .348. 
i»Derniott  v.  .Tones.  2P,  How.  (TT.  S.)  220. 


§§    riv'O,  12;*?1  I'Oli.MS    OF    COMl'l, AIM'S.  680 

ilu'  i  ri'(,-tii>ii  of  a  buihling  upon  llic  land  ui'  another,  if  per- 
roniiaiuc  IS  to  precede  payuicut,  and  is  the  condition  tliereol, 
the  buihler,  having  subistantially  failed  to  perform  according  to 
the  specihcation  of  the  contract  on  his  part,  can  recover  nothing 
lor  his  labor  and  materials,  notwithstanding  the  owner  has 
chosen  to  occupy  and  enjoy  the  erection.-'^  The  pleader  may 
aver  performance  uiiich  he  wishes  to  a\i'r,  and  state  excuses 
and  causes  for  nonperformance  of  other  conditions."*  if  there 
has  heen  any  variation  from  the  terms  of  the  written  contract 
in  the  progress  of  the  work,  by  consent  of  the  parties,  that  fact 
should  also  he  averred,  and  the  performance  of  the  contract  as 
varied.-- 

§  1220.  Extra  work.  It  is  held  that  the  contractor  can  not 
recover  for  extra  work,"  merely  upon  the  proof  that  such  work 
was  done  at  defendant's  request,  the  presumption  being  that 
provision  was  made  for  extra  work  under  the  contract.-^  The 
employer  is  bound  to  pay  the  contractor  for  extra  work  and 
materials,  in  a  deviation  from  the  contract,  upon  an  oral  order.^ 

§  1221.  Public  works.  Contracts  for  the  construction  of 
public  works  are  not  necessarily  illegal  because  for  an  amount  ex- 
ceeding the  sums  appropriated  by  law.^^  So  a  contract  for  the 
performance  of  certain  public  work,  not  authorized  by  law,  pro- 
vided the  legislature  shall  sanction  it,  is  not  void  as  against 
public  poliey.^^  "When  a  contract  for  the  construction  of  a 
public  work  is  silent  as  to  time  and  manner  of  measurement,  the 

20  Ellis  V.  Hanleii,  Pi  Taunt.  .'->2:  Piko  v.  Buller.  4  N.  Y.  .300;  Smith 
V.  Brady,  17  id.  173;  72  Am.  Dec.  442:  compare,  to  the  contraiy, 
Hayward  v.  Leonard.  7  Pick.  181;  10  Am.  Deo.  208;  Smit  v.  Con- 
jrreg-ational  Meeting  House.  8  Pick.  178;  Britten  v.  Turner,  0  N.  H. 
487:  which  wore  disapproved  in  the  eases  first  cited. 

21  For  the  niles  on  the  subject  of  averment  of  performance  of 
conditions  precedent,  see  ante,  "  Complaints  in  General;"  also,  1 
Chit.  PI.  283;  Hatch  v.  Peet,  23  Barb.  575. 

22  O'Connor  v.  Dingley,  26  Cal.  11. 

23  Collyor  V.  Collins,  17  Abb.  Pr.  469. 

24  Rmith  V.  Gujjerty,  4  Barb.  614.  For  a  ease  where  the  contract 
provided  for  the  contingency  of  extra  work,  see  Alscer  v.  Vauder- 
pool.  ?A  N.  Y.  101:  also,  Gillison  v.  AYanamalv-er.  140  Penn.  St.  3.")8. 

25  Cook  V.  Hamilton  Co.,  6  McLean,  112. 

2fi  Id.  See.  also,  to  similar  effect.  Colnmbus  R.  R.  Co.  v.  Indiana^ 
polis  &  Bellefontaine  R.  R.  Co.,  5  McLean,  450. 


681  BUiLUEKS*    CONTRACTS.  §§  1322-1225 

law  implies  tliat  the  work  ib  to  be  done  of  the  ordinary  kind,  and 
the  nica^iurenient  made  in  the  ordinary  way. 

§  1222.  Separate  counts,  ^\"here  the  complaint  contained 
three  counts,  tlie  first  on  a  sp>ecial  contract  for  the  erection  of  a 
warehouse,  the  second  for  extra  work  on  the  building,  and  the 
tJiird  for  work  and  labor  done,  and  materials  furnished  in  its 
erection,  and  the  answer  denied  t^ie  allegations  of  the  first  two 
counts,  but  failed  to  deny  the  allegations  of  the  third,  it  was 
held,  that  the  third  count  should  be  considered  as  denied.^^ 

§  1223.  Performance  by  substitute,  in  agreement  to  find  work 
and  materials  for  building  a  house  entitles  the  party  to  recover 
upon  the  completion  of  the  work,  although  he  procured  it  to 
be  done  by  other  parties. ^^  If  a  new  contract  was  substituted, 
the  original  should  not  be  pleaded.^ 

§  1224.  Terms  of  contract.  Upon  a  compliance  on  the  part 
of  a  subcontractor,  laborer,  or  materialman,  witli  the  terms  of 
the-  statute,  their  right,  which  through  the  original  contractor 
inures  primarily  to  the  benefit  of  such  persons,  must  be  deter- 
mined by  the  terms  of  the  original  contract,  and  they  are 
presumed  to  have  notice  of  the  existence  and  terms  of  such  con- 
tract;^*' and  in  the  absence  of  fraud  or  misrepresentations  by  the 
riwner,  this  presumption  is  conclusive  against  them.^^  Tf,  by 
the  terms  of  the  contract,  the  party  who  has  failed  to  fulfill  was 
to  execute  his  note  for  the  money  due,  payable  at  a  future  day, 
liis  failure  to  do  so  shoulrl  be  averred,  for  the  ground  of  action 
against  him  is  his  failure  to  execute  the  note.'^ 

§  1225.   Against  a  builder,  for  defective  workmanship. 
Form   A^o.  326. 

[Ttti.e.] 

The  plaintiff  complains,  and  alleges: 

T.   Tbat  on  the    dny   of    18..,   at 

the  plaintiff  anrl  dofonrlnnt  ontored  into  an  agroo- 

ment.  of  which  a  copv  is  hereto  annexed  [or  state  the  terms  of 
tbn  rnntrnrt]. 

27Kn1kman  v.  BayllR.  2ft  Col.  :i03. 

^''Rlakpnpy  v.  Evan.'?.  2  Crnvfh.  IS.'). 

2n  rhpsbroiiprh  v.  New  York  i^-  Eri.-  It.  R.  Co.,  20  Barb.  9. 

S"  Rhnvpr  v.  >f!irdnfk.  .".0  Tal.  2m. 

31  TTonloy  v.  Wnd.s-n-nrtb.  ?,R  Cal.  rt.''>6. 

82  O'Connor  v.  Dlnplcy,  20  Cal.  11. 

8n 


il.  'iluit  liic  ]jliuiuill  el  111}-  pci'ioiiucd  all  the  coiidiLioiis  of 
I  111.'  Miul  agrociuciit  ou  liis  pari. 

HI.  That  dt'lcnclaiit  buiil  Ltlic  bnUgeJ  reicrrod  to,  in  a  bad 
and  unworknuuilike  luaimur  Ls^pecifying  wlieruin  the  work  was 

luii  properly  doiicj,  lo  llic  damage  of  the  plaiiilill 

tlollars. 

[Demand  of  Judgment.] 

S  1226.  Against  a  builder,  for  not  completing,  with  special 
damage  for  loss  of  rent. 

For))i  No.  s^7- 

[Title.] 
The  plaintiff  complains,  and  alleges*. 

I.  That  on  the    day  of    ,   18..,  at 

,  the  plaintiff  and  the  defendant  entered  into  an 

agreement,  under  their  hands  and  seals,   of  which  a  copy   is 
annexed  as  a  part  of  this  complaint,  marked  "  Exhibit  A." 

II.  That  the  plaintiff  duly  performed  all  the  conditions  thereof 
on  his  part. 

III.  That  the  defendant  entered  upon  the  performance  of  the 
work  under  said  contract,  hut  has  neglected  to  finish  the  said 
contract  [state  what  he  has  neglected],  and  that  although  the 
time  for  the  completion  of  the  said  building  expired  before 
commencement  of  this  action,  he  neglects  and  refuses  to  com- 
plete the  same. 

IV.  Tliat  the  plaintiff,  on  the day  of , 

18.  .,  at    ,  made  an  agreement  with   one  A.  B., 

whereby  he  agreed  to  let,  and  said  A.  B.  agreed  to  hire,  the  said 

building  for months,  from  the day  of 

18..,  to  the    day   of    , 

18.  .,  at  the  monthly  rent  of   dollars,  of  which 

the  defendant  had  notice. 

V.  That  by  reason  of  the  defendant's  failure  to  complete  the 
contract  aforesaid  on  his  part,  the  plaintiff  has  been  unable  to 
give  said  A.  B.  occupancy  thereof,  and  has  been  thereby  de- 

priA-od  of  the  profits  of  said  lease,  to  his  damage 

dollars,  gold  coin. 

rT)E:\r.\yD  or  Judom-fnt.] 
[Annex  agreement  marked  "Exhibit  A."] 

5  1227.  Performance  —  plans  and  specifications  —  variation. 
The  unqualified  refusal  of  a  contractor  to  perform  a  part  of 


683  builders"  contkacts.  §  r^28 

the  work  on  a  building  in  actual  progress  of  erection,  is  in 
Itself  a  breach  of  the  contract."^  if  a  contract  to  do  work 
provides  that  the  work  shall  be  done  according  to  certain  speci- 
lications,  which  are  annexed  to  it,  the  specifications  are  a  part 
of  the  contract.^^  If  the  contract  is  not  annexed  and  made  part 
uf  the  complaint,  the  allegation  should  embody  sufficient  of  the 
plan  and  specifications  to  show,  in  connection  with  the  aver- 
ment of  the  breach,  in  what  particular  the  contract  was  broken.^^ 
An  averment  may  be  made  sufficiently  certain  by  introducing 
and  referring  to  diagrams  showing  form  and  dimensions,  etc.^" 
Where  the  contract  gives  the  employer  the  right  to  change  the 
form  and  the  material,  the  builder  has  not  the  right  upon  such 
a  change  to  stop  the  work  in  an  unfinislied  state,  and  thus  ar1u- 
trarily  annul  the  contract.^"  A  written  contract  to  furnish 
articles  for  a  building,  mentioning  no  time  for  performance,  is  to 
be  performed  in  a  reasonable  time,  and  oral  evidence  that  a 
certain  time  was  agreed  on  by  the  parties  is  not  admissible.^^ 

§  1228.  Breach  of  contract  —  damages  —  excusable  delay.  A 
covenant  in  a  contract  to  erect  and  complete  a  building  by  a 
certain  day,  under  a  penalty  of  thirty  dollars  for  every  day  same 
should  remain  unfinished,  is  not  an  absolute  covenant  to  finish 
it  on  that  day.^^  Where  the  plaintiflF  fails  to  perform  by  the 
day  fixed,  the  defendant's  consenting  to  his  going  on  and  com- 
pleting the  contract  afterwards  is  no  waiver  of  the  right  to 
recoup  his  damages  for  the  delay.^°  One  who  has  agreed  to 
build  a  house  on  the  land  of  another,  and  has  substantially  per- 
formed his  contract,  but  has  not  completely  finished  the  house, 
nor  delivered  it,  when  it  is  destroyed  by  fire,  is  liable  in  an 
action  for  money  advanced  upon  the  contract,  and  damages  for 
its  nonperformance*^  Tf  the  delay  on  the  part  of  the  contrac- 
ts Thompson  v.  Lainjx,  S  Bosw.  482. 

34  Taylor  v.  Palmer.  .'',1  Gal.  241. 

3S0f)one.v  v.  Winants,  10  Wend.  r,<H. 

3«  Booker  v.  Ttny.  17  Tnd.  .'.22. 

37riark  V.  Mayor  of  New  York.  4  N.  Y.  3.'?8;  .^T  Am.  Deo.  .370. 

asstranpe  v.  ■NVilson.  17  Mifii.  .342. 

3t>FarTiliam  v.  Ttoss.  2  FIiill.  Hh. 

4f>BarliPr  v.  Bosf.  .'»  Hill.  7(5. 

41  Anrlrpws  v.  Knrniit.  11  N.  \.  .3.":  c.'J  A  in.  l>pr.  .'.'):  ITrrToiil  v. 
Alirfr.  1  'r.-innt.  21.S:  Mcrrit  v.  .lolmsoii.  7  .lolina.  47.3:  .'»  Am.  Doc. 
2Sn:  Adams  v.  Xioliols.  10  Pirk.  27.".:  .31  Am.  Deo.  1.37:  Tlarinony  v. 
Bingham.  12  N.  Y.  90;  02  Am.  Dec.  142;  School  District  v.  Douchy, 


^^    rj-^'8  FORMS    or    COMl'LAliNTS.  t)8-i 

tor  to  porl'onn  the  work  is  caused  by  want  of  readiness  in  the 
work  performed  by  another  contractor  under  an  independent 
contract,  he  can  not  be  held  liable  for  a  breach  of  his  contract, 
nor  forfeit  his  right  to  recover  for  what  he  has  done.^^  Where 
a  building  contract  contained  a  provision  that  the  owner,  on 
fifteen  days'  notice,  might  employ  another  to  finish  it,  and  pay 
therefor  out  of  any  money  due  the  contractor,  it  was  held  tliat 
by  failing  to  complete,  the  contractor  forfeited  only  so  much 
as  the  owner  was  obliged  to  pay  to  finish  the  building.*^ 

25  Conn.  530;  3  Dutch.  514;  08  Am.  Dec.  371;  Tompkins  v.  Dudley, 
25  N.  Y.  272;  82  Am.  De^'.  349. 

42  Stewart  v.  Keteltas,  9  Bosw.  261. 

«  Foley  V.  Gough,  4  E.  D.  Sfliith,  724. 


i 


CHAPTEE  II. 

ox    CHARTERPARTIES. 

§  1229.   Owner  against  freighter  for  not  loading. 
Form  No.  328. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,  18..,  at 

,  the  plaintiff    and  defendant    entered    into  an 

agreement,  a  copy  of  which  is  hereto  annexed. 

[Or,  I.  That  on  the   day  of   ,  18. ., 

at ,  the  plaintiff  and  defendant  agreed  by  charter- 
party  that  the  defendant  should  deliver  to  the  plaintiff's  ship 

"  Flying  Scud,"  at ,  on  the day  of , 

18..,  four  hundred  and  fifty  tons  of  wheat  which  she  should 
carry  to  London,  England,  and  there  deliver  on  payment  of 
four  thousand  dollars  freight;  and  that  the  defendant  should 
have  ten  days  for  loading,  five  days  for  discharge,  and  three 
days  for  demurrage,  if  required,  at  fifty  dollars  per  day.] 

IT.  That  at  the  time  fixed  by  the  said  agreement  the  plaintiff 
was  ready  and  willing  and  offered  to  receive  the  said  merchan- 
dise [or  the  merchandise  mentioned  in  the  said  agreement] 
from  the  defendant. 

TIT.  That  the  period  allowed  for  loading  and  demurrage  has 
elapsed,  })ut  the  defendant  has  not  delivered  the  said  merchan- 
dise to  the  said  vessel. 

Wherefore  the  plaintiff  demands  judgment  for 

dollars  for  demurrage,  and dollars  additional  for 

damages. 

8  1230.  Charterparty  defined.  A  fhartorpnrtv  is  a  eontract 
by  whieh  the  owner  lets  his  vess<^'l  to  another  for  freight.^  .Any 
fontract  founded  on  an  illegal  voyage  partakes  of  the  character 
f)f  that  voyage,  and  stands  or  falls  with  it.^ 

I  Sprlntr  v.  r.rny'fl  Ex'rs.  r,  Pof.  I."-,!,  ^C,■^. 

■i  ColqnliouD  V.  New  York  rirejiian's  Ins.  Oo.,  15  Johns,  352. 


§§    I'sJol-l'v^o-i  rOEMS   OF   COMI'LAINTS.  686 

s  1231.  Measure  of  damages.  Tlie  uicasui-o  of  damages-  against 
II  (.liai'K'rer  who  reiusuc>  to  I'uruish  a  cargo  according  to  iiis 
to)ilraet  iii  the  stipulated  price,  deducting  tlie  net  earuiiigs  oi 
the  vessel  during  the  time  she  lias  been  occupied  on  the  voyage, 
at  an  average  passage,  and  including  tlie  lay  days.*  If  the 
freighter  only  partially  fullills  his  contract,  the  owner  may  re- 
cover for  the  dead  freight  his  contract  price;  but  the  owner  is 
bound  to  taJie  other  freight  if  offered,  though  at  a  less  price, 
and  can  recover  only  the  difference  in  price.'* 

§  1232.   Demurrage,  allegation  for. 

l-'unn  No.   J^g. 

That  the  defendant  detained  the  ship days  beyond 

the  periods  so  agreed  on  for  loading,  discharging,  demurrage, 
as  aforesaid,  whereby  the  plaintiff,  during  all  that  time,  was 

deprived  of  the  use  of  the  ship,  and  incurred dollars 

expense  in  keeping  tlie  same  and  maintaining  the  crew  thereof. 

§  1233.  Demurrage,  damages  for.  Although  demurrage,  prop- 
erly so  called,  is  only  payable  when  it  has  been  stipulated, 
yet  if  a  vessel  is  improperly  detained,  the  owner  may  have  a 
special  action  for  the  damage.^  It  is  the  duty  of  the  charterers 
to  restore  the  ship  at  the  end  of  the  period  allowed  for  the 
demurrage,  but  they  are  not  responsible  for  an  unreasonable 
delay  by  the  master.^  And  one  who  purchases  goods  arriving 
in  bond  is  not  liable  for  demurrage  of  the  vessel  for  the  deten- 
tion occurring  before  the  seller  obtains  legal  permit  for  the 
delivery.'^  No  demurrage  can  be  recovered  by  an  owner  for  a 
detention  occasioned  either  by  tlie  misconduct  of  the  master, 
for  which  the  owner  alone  was  answerable,  or  to  avoid  danger, 
and  not  by  any  misconduct  or  any  breach  of  covenant  by  the 
charterer.^ 

§  1234.  Distinction  between  contracts  of  hiring  and  afiPreight- 
ment.  An  agreement  to  biro  a  vessel  in  any  legal  trade  for 
a  specified  period,  with  covenants  for  her  seaworthiness,  and 
that  the  hirer  should  pay  by  the  time,  and  not  by  the  carrying 

3  AshhuiTiPr  v.  Ralchon.  7  X.  Y.  202;  see  Watts  v.  Camors,  10  Fed. 
■Rep.  14.";;  11."  r.  S.  3.^).3:  .Tohnson  v.  Meeker.  90  N.  Y.  93:  48  Am. 
TLoj).  009. 

4  Abb.  on  Rliinpincr,  428;  TTerksrhor  v.  Mrrroa.  24  Wend.  304. 
!^Abb.  on  F?tiiT.nintr.  304:  rirndaniol  v.  Tuckerman,  17  Barb.  184. 
«PiObttins  V.  Corlman,  4  E.  D.  FSmith,  .31.5. 

Tflillpspio  V.  Dnranrl.  3  E.  D.  Smith,  531. 
8  Hooe  V.  Groverman.  1  Cranch,  214. 


G87  CHAETEBPARTIES.  §§    1335-123? 

ul  goods  on  the  voyage,  is  a  liiriug  of  the  vesbel^  and  not  a 
coulract  oi  freight.*^ 

S  1235.  Duties  of  master.  Where  a  chai'terparty  allows  a 
charterer  a  number  of  "  lay  days/'  and  neither  the  consignees 
nor  other  persons  receive  the  cargo  or  pay  the  freight  after 
arrival  at  the  port  of  destination,  the  master,  acting  as  sole 
agent  on  behalf  of  both  charterer  and  owner,  is  bound  to  sell 
the  cargo  and  pay  the  freight,  on  expiration  of  the  "  lay  days," 
but  he  is  not  bound  to  sell  before  the  expiration  of  the  "  lay 
days."i» 

g  1236.  Interpretation  of  contract.  In  the  construction  of 
charterparties,  it  must  be  remembered  that  they  are  often  in- 
formal, and  must  have  a  liberal  construction,  in  furtherance  of 
the  real  intention  of  the  parties  and  the  usage  of  the  trade.^^ 
And  though  the  owner  of  a  ship,  of  which  the  charterer  is 
freighter  only,  has  a  lien  upon  the  cargo  for  freight,  and  also 
for  a  sum  agreed  to  be  paid  for  the  use  and  hire  of  the  ship, 
liis  lien  may  be  considered  as  waived,  without  express  words  to 
that  effect,  if  there  are  stipulations  in  the  charterparty  incon- 
sistent with  the  exercise  of  the  lien,  or  when  it  can  fairly  be 
inferred  that  the  owner  meant  to  trust  to  the  personal  respon- 
sibility of  the  charterer.^2 

§  1237.  Mode  of  stowage.  A\niere  no  mode  of  stow^ige  is 
prescribed  in  the  charterparty.  the  usage  of  trade  will  obtain, 
and  the  owner  ^vill  not  be  liable  for  damages  resulting  there- 
from." 

f*  Winter  v.  Simonton,  ^  rraneli  G.  C.  104;  see,  also.  Donahoe  v. 
Kettel.  1  Oliflf.  1.^";  Ilusten  v.  Richards,  44  Me.  182. 

10  Rnbbins  v.  Oodman,  4  E.  D.  Smith.  31.^>. 

n  Abb.  on  Rhiiipincr  (Story's  ed.).  188;  .S  Kent's  Com.  201  cf  scq- : 
Rnp^les  V.  Buekner,  1  Paine,  3.')8:  1  Smnn.  .^>.">1 ;  r<>rtaiii  Lor,  ete.. 
V.  Rifliardson.  2  id.  ."..SO;  (Jrneie  v.  Palmer.  8  Wheat.  (M>.".,  n;M;  Ray- 
inoiul  V.  Tyson,  17  How.  iT'.  S.)  .'.r!:  The  PntLTr»ss,  .^O  I'ed.  Rep.  S:?.">; 
The  R.   V.   Rniee,   Id.  118. 

12  Paine,  .sn.*?:  Chandler  v.  Relden.  IS  .Tohns.  l.^>7.  102;  f)  Am.  Dee. 
in.?;  .\l)b.  on  Shippinjr.  178;  Lticas  v.  Nadcells,  4  Rinjr.  720:  Cnwoll 
V.  Siiiipsdii.  1(i  Ves.  27r»:  Chase  v.  Westniore.  .%  >ran.  t<L-  Sol.  ISO; 
Crawshay  v.  Hanifray,  4  P.arn.  tV  .\ld.  .'2:  Tv'nvniond  v.  'l':vs<in,  17 
TIow.  iT'.  S.)  ;'.'',.  As  1(>  the  ((msti'nction  <>\'  chart eriiarlies  In 
peenliar  eases,  see  Oirdon  v.  Parsons.  'M  Ilnnt's  Mcrehant's  Mac 
(Dee..  18.-7).  710;  Rolniont  v.  Tyson.  :!<!  Id.  (Feb.,  18.''>7),  202;  Free- 
man V.  A  Carfio  of  Salt.  40  Id.  (.\prll.  l.S.-.d),  457. 

18  Lamb  v.  Parkman,  Syirairne.  MS. 


g  1238.  Lay  days.  Under  a  cliartcrparly,  Uie  lay  days  ol 
a  M'sscl,  by  the  general  rule,  eonmience  tu  run  from  tlie  time 
the  veissel  enters  the  iloek.'^  Where  the  delivery,  by  the  terms 
(if  the  eharterparty,  was  to  be  made  "  alongside  ol'  the  plaintill's 
vessel,  within  reach  ol'  her  tackles,"  it  was  held  that  if  the 
master  was  directed  to  take  the  vessel  to  a  certain  doclc,  and 
did  so,  the  lay  days  connneneed  to  run  from  the  day  she  was 
taken  there,  and  was  in  readiness  alongside  the  dock  to  receive 
her  cargo.  A  eharterparty  provided  for  "  lay  days"  as  follows: 
To  load  twenty  days  from  the  twelfth  instant,  the  owner  guai'- 
anteeiug  to  have  the  vessel  ready  by  that  time;  and  by  a  subse- 
quent stipulation  the  eharterparty  was  to  commence  when  the 
vessel  was  to  receive  cargo,  and  notice  thei-eof  should  be  given 
to  the  charterer.  The  readiness  of  the  vessel  at  the  day  named 
was  a  condition  precedent  to  the  charterer's  liability  to  accept 
and  employ  her,  and  the  eharterparty  commences  on  notice  that 
the  vessel  is  ready  to  receive  the  cargo.^^  Where  no  "  lay  days  " 
are  provided  in  the  eharterparty  or  bill  of  lading,  and  there  is  po 
express  stipulation  as  to  the  time  of  unloading,  the  consignee  is 
not  liable  for  delays  occurring  without  his  fanlt.^^ 

§  1239.  Liability  of  charterer.  Where,  by  the  terms  of  the 
eharterparty,  the  charterer  was  to  return  the  boats  "  in  as  good 
condition  as  they  now  are,  with  the  exception  of  the  ordinary 
nse  and  wear,"  he  is  not  liable  as  an  insurer  against  the  perils 
of  the  sea  or  risks  of  navigation.^'^ 

§  1240.  Negligence,  liability  for.  If  persons  charter  a 
steamboat  generally,  they  are  owners,  in  respect  to  liability  for 
negligence  in  running  her.  If  the  contract  is  one  of  affreight- 
ment merely,  they  are  not  such  owners.^^ 

§  1241.  Owner  for  voyage.  If,  by  the  terms  of  the  charter- 
party,  the  charterers  are  to  have  exclusive  possession,  control, 
and  management  of  the  vessel,  appoint  master,  run  the  vcssol, 
and  receive  the  entire  profits  they  are  the  owners,  and  are  alone 

14  1  Pars.  !Mar.  L.  2G2:  I^owe  v.  Smith,  10  Bosw.  268. 
ifiWeisser  v.  Mailland,  P,  Sandf.  .318. 
i«  The  Glover.  1  Brown  Adm.  160. 

t7  Story  on  Bailm.,  §  35;  Broom's  Leg.  Max.  217;  Ames  v.  Belden, 
17  Barb.  .^14. 
18  Sherman  v.  Froam,  30  Barb.  478. 


689  CHAKTKKPAliTlES.  g§    i'-^^-i-i.-^Ttb 

responsible  for  damages  and  contracts. ^'-^  And  the  charterers' 
right  of  possession  may  be  lost  by  a  voluntary  surrender  to  the 
owners.^ 

§  1242.  Power  of  master.  The  master  of  tlie  vessel  may 
make  a  charterparty,  where  the  owner  has  no  agent  in  a  foreign 
port,  for  the  benefit  of  the  owner,  but  not  to  give  a  creditor  of 
the  owner  a  security  of  the  debt  due  to  him.-^ 

^  1243.  Refusal  to  overload.  Although  the  charterparty  lets 
the  entire  capacity  of  the  vessel,  if  the  goods  put  on  board  are 
heavy  articles,  and  before  the  ship  is  full  sink  her  as  low  as 
is  usual  and  proper  without  extra  danger,  the  owners  or  master 
of  the  vessel  do  not,  by  refusal  to  take  more,  violate  the  cliarter- 
party.^^ 

§  1244.  Repairs  of  vessel.  A  breach  of  a  clause  in  the  char- 
terparty, binding  the  charterer  to  keep  the  vessel  in  repairs, 
should  be  alleged  in  the  complaint  in  an  action  by  owners  of  a 
vessel  against  chartcrer.^^ 

§  1245.  Rescission.  Whore  two  persons  chartered  a  vessel  for 
six  montlis,  and  after  a  part  of  the  time  had  passed,  the  owner 
agreed  with  one  of  the  charterers,  in  Avriting,  that  tlie  charter- 
party  was  to  be  deemed  to  have  expired,  it  was  held  a  valid 
rescission  of  the  contract.^* 

§  1246.  Running  days.  A  provision  in  the  charterparty  for 
running  days  is  in  cflect  a  positive  stipulation  by  the  freighter 
that  he  will  load  and  unload  within  the  time  mentioned,  and 
inevitable  accident  docs  not  excuse  him.^^ 

i»  Oracio  v.  Piilnier.  s  AVlien.t.  0.32:  Marcordier  v.  Clie9ai>eal\o  Tns. 
Co..  8  Cranoh.  r«1:  AI>1>.  on  Shippinpr  ^Kng.  0(\.)  .57.  note  1;  id.  2W^, 
2Sn:  1  Sumn.  .5(10.  .-(;7:  Kl<-in.'  v.  Catara.  2  r.all.  7.5;  Hill  v.  The 
r.olden  Oato.  1  Ncwb.  .'U»S;  Wiiitor  v.  Simontnn.  3  T*i-anfli  C  C. 
104.  A  rlmtierpai'ty  examined,  and  held  not  1o  havo  had  Ihe  effect 
of  transfMTintr  the  o-wnrrEliip  and  poKfi(\'<slon  froiiii  II1.0  penoral 
owners,  riarl^.son  v.  Edes,  4  Cow,  470;  Mac'tatr^'.er  v.  Henry,  3  E. 
IK  Smith.  .300;  Ilolinos  v.  Pn vrnsl ed ( .  .5  Sajidf.  n7. 

20  T?pr;r«>n  v.  Tamined.  40  Hunt's  Mmli.  Ma.fr.  708. 

21  Hnrry  v.  Ifnrn-.  2  AVa.xli.  C.  C    1  1.". 
22W<-ston  V.  Minol,  ?,  Woodb.  ,^-  M.    1.''^',. 

ssrnstor  v.  Now  Y(»rk  it  Erie  K.  If.  Co..  3  A.l.h.  Pr.  332. 
24-\Mieelor  V.  Cniila.  11  Wend.  f;.53. 
2--' Field  V.  riiasp.  Hill  tV  It.  Snpp.  50. 
Vol.  T— 87 


§§    rv*47-r250  FORMS   OF   COMPLAINTS.  690 

8    1247.   Charterer  against  owuer,  for  deviation  from,  contract, 
and  abandonment  of  voyage. 

Form  No.  SJO. 

[Title.] 
The  plaiutill;  complains,  and  alleges: 

I.  That  on   the    day   of    ,   18..,   at 

,  tlie  plaintiir  and  defendant  agreed,  by  charter- 
party,  that  the  defendant's  ship,  called  the ,  then 

at ,  should  sail  to ,  or  so  near  there 

as  sJie  could  safely  get,  with  all  convenient  speed,  and  tliere 

load  a  full  cargo  of ,  or  other  lawful  merchandise, 

from  the  factors  of  the  plaintiff,  and  carry  the  same  to , 

and  there  deliver  the  same,  on  payment  of  freight. 

II.  That  the  plaintitf  duly  performed  all  the  conditions  of  the 
contract  on  his  part. 

III.  That  the  said  ship,  the ,  did  not,  with  all 

convenient  speed,  sail  to ,  or  so  near  thereto  as  she 

could  safely  get;  but  that  the  defendant  caused  the  said  ship 
to  deviate  from  her  said  voyage,  and  abandon  the  same,  to  the 
plaintiff's  damage dollars. 

[Demand  of  Judgment.] 

§  1248.  Assent  of  charterer.  Where  a  chartered  vessel  met 
another  vessel  in  distress  in  the  course  of  her  voyage,  and  one 
of  the  charterers,  being  on  board,  consented  that  a  part  of  the 
crew  might  go  on  board  the  distressed  vessel  to  assist  in 
saving  her,  the  assent  of  the  charterer  would  not  vary  the  con- 
tract respecting  the  freight.^^ 

§  1249.  Deviation.  On  a  voyage  from  Sonth  America  to  Bos- 
ton, stopping  at  Xew  York  may  be  such  a  deviation  as  would 
render  the  charterer  liable  for  damage  it  might  occasion.  Yet 
it  is  not  such  a  change  as  will  dissolve  the  charterparty  and 
entitle  the  owner  to  possession  at  Kew  York,  and  to  retain  cargo 
for  freight,  though  the  charterer  has  become  insolvent. ^'^ 

§  12S0.  Negative  allegations.  If  there  are  exceptions  in  the 
charterparty,  allegations  tending  to  negative  the  same  are  not 
necessary  .^^ 

2B  Mason  r.  P.Iairpan,  2  rranoli.  240. 

27  Lander  v.  ri.irk.  1  Hall.  .SM. 

28  WTieeler  v.  Bavidge,  9  Exch.  008;  S.  C,  2  C.  L.  R.  1077. 


691  CHAETEEPAKTIES.  §§    1351-1253 

§   1251.   Shipowner  against  charterer  for  freight. 
Form  No.  jji. 

[Title.] 

The  plaintiti'  complains,  and  alleges: 

I.  That  on  the    day   ot    ,   18..,   at 

,  the  plaintiff  and  defendant  agreed,  by  charter- 
party,  that  the  plaintiff's  ship,  called    ,   should, 

with  all  convenient  speed,  sail  to   ,  and  that  the 

defendant  should  there  load  her  with  a  full  cargo  of , 

or  other  lawful  merchandise,  to  be  carried  to ,  and 

there  delivered,  on  payment  by  the  defendant  to  the  plaintiff 
of  freight,  at dollars  per  ton. 

II.  That  the  said  ship  accordingly  sailed  to    , 

aforesaid,  and  was  there  loaded  by  the  defendant  with  a  full 
cargo  of  lawful  merchandise,  and  the  plaintiff  carried  the  said 

cargo  in  said  ship  to aforesaid  and  there  delivered 

the  same  to  the  defendant,  and  otherwise  performed  all  the 
conditions  of  said  contract  on  his  part. 

III.  That  said  freight  amounted  in  the  whole  to  the  sura  of 
dollars. 

IV.  That  the  defendant  has  not  paid  the  same. 

[Demand  of  Judgment.] 

§    1252.   Allegation  against  assignee  of  cargo. 

Form  No.  332. 

That  thereafter  the  said  A.  B.  assigned  the  cargo  to  the  de- 
fendant, who  thereupon  became  the  owner  thereof  and  entitled 
to  receive  the  same. 

§  1253.  Allegation  of  a  charter.  The  plaintiffs  alleged  in  their 
complaint  that  their  assignors  having  chartered  a  vessel,  earned 
freight,  which  the  defendants,  the  consignees  of  the  vessel,  had 
collected  and  refused  to  pay  over.  The  defonrlants,  in  tboir 
answer,  denied  that  the  plaintiffs'  assignor  had  cliartcrcd  the 
vessel  in  any  other  way  tban  by  a  chartor|)aHy,  whicb  ))r<)vided 
that  their  right  to  any  share  of  the  freight  should  bo  contingent 
on  the  freight  exceeding  twenty-five  thousand  dollars;  it  was 
held  that  this  put  in  issue  of  plaintiffs'  allegation  of  a  charter, 
and  that  the  plaintiffs  must  prove,  eitluT  an  unconditional 
charter,  or  that  under  the  charter  alleged  by  defendants  the 
freiL-'ht  had  exceeded  twenty-five  thousand  dollars.^ 

»  Patrick  v.  Metcalf.  f)  Ro.sw.  483, 


§§  I'.'Di,  I'ibb  FORMS   OF   COMPLAINTS. 


693 


jl  1254.  Lieu  for  freight.  The  riglil  oi'  lien  for  freight  does 
not  absolutely  depend  on  any  eoveuaul  to  pay  freight  on  the 
delivery  of  the  eargo.""^  Nor  can  ehurterers,  with  the  consent 
of  the  master  abroad,  make  any  agreement  exonerating  the  goods 
from  freight,  and  defeating  the  lieu  t»f  the  i)\vners.'''  Nor  can 
til  master  enter  into  such  agreement,  and  such  agreements  would 
give  no  rights  to  a  person  who  entered  into  them  wdth  the 
knowledge  of  the  charterparty.-'^  But  the  master,  notwith- 
standing the  interference  of  the  charterer,  may  retain  the  goods 
until  his  lien  shall  be  satisfied,  or  may  sue  the  consignee  after 
delivery  of  the  goods.^^ 

§  1255.  Sale  of  cargo.  Where  owners  of  cargo  did  not  ap- 
pear, and  the  master  put  up  at  auction  and  sold  the  cargo  on 
due  notice,  and  became  the  purchaser,  but  retained  the  goods 
on  the  vessel,  awaiting  a  higher  price,  he  had  no  right  thus  to 
constitute  the  ship  a  storehouse,  and  the  charterer  was  not  liable 
for  demurrage,  beyond  a  reasonable  time  for  discharging  after 
the  first  sale.^^ 

30  Abb.  on  Shipping,  part  3,  chap.  I,  §  7,  p.  177;  The  Volunteer.  1 
Sunin.  551. 

31  Gracie  v.  Palmer,  8  Wheat.  G05;  I'eversing  Palmer  v.  Gracie, 
4  Wash.  O.  C.  110. 

32  The  Salem's  Cargo,  1  Sprague,  389. 

33  Gracie  v.  Palmer.  8  Wheat.  605;  3  Kent  (3d  ed.),  138,  210,  220; 
Abli.  on  Shipping,  286-288;  Smith  Merc.  Law,  187;  Shaw  v.  Thomp- 
son, Ole.  144. 

34  Robbins  v.  Codman,  4  E,  D.  Smith,  315. 


CHAPTER  III. 

COVEXAXTS. 

§   1256.  Warranty  of  title  to  real  property. 
Form  No.  333. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18 . . ,  at 

,  the  defendant,  in  consideration  of 

dollars  to  liim  paid,  granted  to  the  plaintiff,  by  deed  [here  in- 
sert description],  and  in  his  said  deed  warranted  that  he  had 
good  title  in  fee  simple  to  the  said  property,  and  would  defend 
the  plaintiff  in  his  possession  of  the  same. 

II.  That  the  defendant  was  not,  but  one  A.  B.  was  then  the 
lawful  owner  of  the  said  lands,  in  fee  simple. 

III.  That  on  the day  of ,  18.  .,  the 

said  A.  B.  lawfully  evicted  the  plaintiff  from  the  same,  and 
still  withholds  the  possession  thereof  from  him. 

[Demaxd  of  Judgmext.] 

§  1257.  Action  on  covenant  —  assignment  of  breach.  In  or- 
der to  enable  one  to  maintain  an  action  on  a  covenant,  there 
must  not  only  be  a  branch  of  the  covenant,  but  some  loss  or 
damage  to  the  covenantee.^  The  covenant  of  quiet  enjoyment 
and  of  general  warranty  requires  the  breach  to  show  an  evic- 
tion.^ Covenants  are  to  be  considered  dependent  nu  or  indcv 
pendent  according  to  the  intention  of  the  parties,  wliich  is  to  lie 
deduf'f'd  from  the  whole  instrument.^  "Where  covenants  are  de- 
penrlent,  an  action  can  not  be  maintainorl  withnnt  phowin<i  a 
performance  on  plaintiff's  ])art  of  every  affirmative  covenant.* 
That  a  party  covonantod  by  indenture,  imports  that  a  covonant 

1  Swall  V.  riarko.  .'1  Pal.  227.  .\vprniPnl  of  lin-arli.  Rpo  AVodlley 
v.  Nfwoombe,  S7  X.  Y.  c,or>. 

2  Ttlfkfrt  V.  Snyflor,  0  Wf-nd.  JU;;  Marstrm  v.  TTo1>l.s.  2  Afaas.  A?,?,;  3 
Am.  Ttcc.  f;i. 

3  PlillnfV'lpIiin  R.  v..  f'n.    v.  TTowanl,  1.'?  ITow.  (U.  S.)  307,  339. 
4 Webster  v.  Warnii.  2  ^^■as^l.  C.  O.  450. 


§§  r^5S,  1259      PORMS  OF  COMPLAINTS.  694 

wiis  uudcr  bcal;"'  and  an  aMTiiiciiL  ol  oxeeuLioii  imports  delivery." 
The  graiiK'c  in  a  ileed-poli  is  bound  by  tlie  covenauis  tliereiu 
contained  to  be  peri'oruied  by  liini,  and  an  action  of  covenant 
lies  for  a  breach  tliereol".  By  acceptance  of  such  a  deed,  the 
grantee  is  estopped  from  denying  his  covenants,  or  thai  the 
seal  attached  to  the  deed  is  his  own  as  well  as  tlie  grantor's^ 
Even  if  an  action  of  covenant  will  not  lie  in  such  case  against 
tlio  grantee,  a  court  of  equity  will  restrain  him  or  his  grantcea 
from  doing  what,  by  such  covenant,  he  has  agreed  not  to  do.® 

§   1258.  Eviction,   allegation  of. 

Form  No.  334. 
That  the  defendant  has  not  warranted  and  defended  the  prem- 
ises to  the  plaintiff;  but,  on  the  contrary,  one  C.  D.  lawfully 
claimed  the  same  premises  by  a  paramount  title,  and  afterwards, 
in  an  action  brought  by  him  in  the  Superior  Court  of  the 

county  of  ,  state  aforesaid,  in  which  said  C.  D. 

was  plaintiff,  and  this  plaintiff  was  defendant,  the  said  C.  D., 
on  the day  of ,  18 .  . ,  recovered  judg- 
ment, which  was  duly  given  by  said  court  against  this  plaintiff, 

for  his  seisin  and  possession  of  the  premises,  and  on  the 

day  of ,  18. .,  lawfully  entered  the  premises,  and 

ousted  the  plaintiff  therefrom,  and  still  lawfully  holds  the  plain- 
tiff out  of  the  possession  thereof. 

§  1259.  Eviction,  what  is  — averment  of.  Eviction  by  pro- 
cess of  law  is  not  necessary  to  enable  an  action  to  be  maintained 
on  the  covenant.®  And  an  averment  that  the  vendor  had  not 
a  good  and  sufficient  title  to  the  said  tract  of  land,  and  by 
reason  thereof  the  said  plaintiffs  were  ousted  and  dispossessed 
of  the  said  premises  by  due  course  of  law,  is  sufficient.^*'  In  a 
declaration  upon  a  covenant  of  warranty,  it  is  necoRsary  to  allege 
substantially  an  eviction  by  title  paramount;  but  no  formal 
terms  are  prescribed  in  which  the  averment  is  to  be  made.^* 
A  purchaser  in  possessinn  can  not  reclaim  the  purchase  money 
on  account  of  defect  in  the  title,  unless  he  has  been  e\ncted 

5  Cabell  V.  Yaugrhan,  1  Saund.  291:  Phillips  v.  Clift,  4  Hurlst.  &  N. 
108. 
fl  Brlnokerhoff  v.  T>awrence,  2  Sandf.  Ch.  40O. 
7  Atlantic  Dock  Co.  v.  Leavitt.  .54  N.  Y.  35;  13  Am.  Rep.  556. 
R  Id. 

0  McOary  v.  Hastinps.  Rf)  Cal.  RfiO:  2  Am.  ■Ron.  4.50. 
If  Day  T.  Chism.   10  Wlioat.  449. 
11  Rickert  v.  Pnyder,  9  Wend.  410;  Day  v.  Cliism,  10  Wheat.  449. 


695  COVENANTS.  §§   12G0,   1-^Gl 

or  disturbed.^^  Nor  on  the  ground  that  the  title  existed  else- 
where than  in  the  grantor.^^  That  the  plaintiff  was  lawfully 
evicted  from  the  right  and  title  to  said  premises  by  a  paramount 
and  lawful  title  to  the  same,  does  not  import  an  ouster  from 
possession."  Where  the  covenantee  is  held  out  of  possession 
by  one  in  actual  possession  under  a  paramount  title,  the  cove- 
nant is  broken. ^^  The  use  of  a  right  of  way  by  the  party 
entitled  to  it  is  an  eviction  of  the  servient  estate,  within  a 
covenant  of  warranty  against  all  "  lawful  claims,"  for  which  the 
latter  may  sue  as  assignee  of  the  covenantee. ■'^ 

§  1260.  Judgment  covenants.  Where  the  parties  to  a  deed 
covenanted  severally  against  their  own  acts  and  incumbrances, 
and  also  to  warrant  and  defend  against  their  own  acts  and 
those  of  all  other  persons,  witli  an  indemnity  in  land  of  an 
equivalent  value,  in  case  of  eviction,  these  covenants  are  inde- 
pendent, and  it  is  unnecessary  to  allege  in  the  declaration  any 
eviction,  or  any  demand,  and  refusal  to  indemnify  witli  other 
lands,  but  it  is  sufficient  to  allege  a  prior  incumbrance  by  the 
acts  of  the  grantors,  etc.;  and  that  the  action  might  he  sus- 
tained on  the  first  covenant  for  the  recovery  of  pecuniary 
damages.^^ 

8  1261.  General  covenant  of  warranty.  If  a  deed  contains 
a  general  covenant  of  warranty  of  lands  thereby  intended  to 
be  conveyed,  and  also  a  covenant  tbat  if  any  portion  of  tlie  land 
lias  been  before  conveyed  to  other  persons,  tlie  grantor  will 
convey  to  the  grantee  other  lands  of  like  (piality,  the  former 
covenant  relates  to  land  wliich  the  docnl  purports  to  convey, 
and  not  to  tbe  land  wliicb  tbe  grantor  covenanted  to  convey 
in  tbe  latter  covenant. ^^  ^Mierc  land  is  sold  witb  covenant  of 
warranty,  accompanied  with  delivery  of  possession,  and  tbe 
purcha-^er  gave  a  note  in  payment,  tbe  warranty  and  flic  ))romipe 
to  pay  are  independent  covenants.''"  A  covenant  of  ibo  Ln-nntor, 
warranting  the  title  of  tbe  land    sold    as   "indisputable   and 

12  Snlnion  v.  TTofTman,  2  Pnl.  I.'^S;  r>(',  Am.  Deo.  322. 

IT  Fowler  v.  Rniitli,  2  f'lil.    II. 

n  Rlyrlenhertr  v.  Cotlioal.  1  I  Mior.  17<!. 

I'^Wlilty  v.  IliKlitowpr.  12  SiiiPd.  i<L-  M.  478 

i«  Knss  T.  Steele,  40  Vt.  PAO. 

17  Pnvall  V.  Craip,  2  Wlioat.  4.''). 

i«  Vanre  v.  Pena.  n.T  r.nl.  r,?A. 

10  Norton  v.  .Jackson,  ."j  Cal.  263. 


§§  1262-12G5  FORMS  of  complaints. 


696 


Batisfaetory,"  is  not  broken  if  the  title  is  good  and  valid.^o  A 
covenant  of  nonclaini  in  a  deed  amounts  to  a  eovenant  of 
warranty,  and  operates  eciuuUy  as  an  estop})el.-'  The  covenant 
of  warranty  nms  with  the  land,  and  the  vendor  is  liable  directly 
to  the  person  evicted."  Where  a  covenant  of  warranty  is  based 
upon  a  right  or  title,  which  is  sul)seqiiently,  by  a  judgment  of 
the  court,  adjudged  invalid,  and  live  years  are  given  by  statute 
to  appeal  from  said  judgment,  an  action  for  breach  of  the 
covenant  will  not  lie  till  the  five  years  have  expired.-^ 

§  1262.  Notice  of  action.  Verbal  notice  is  sufficient.^"*  If 
the  covenantor  has  notice  of  the  action,  the  covanantee  is  not 
bound  to  defend.^^  The  proceedings  will  be  conclusive  against 
the  covenantor  in  this  action.^'' 

§  1263.  Remedy.  If  a  party  takes  a  conveyance  Mdthout 
covenants,  he  is  without  remedy  in  case  of  failure  of  title;  and 
if  he  takes  a  conveyance  with  covenants,  his  remedy  upon  fail- 
ure of  title  is  confined  to  them.^'^ 

§    1264.   Special  damag-es  —  allegation  of. 
Form  No.  335. 

That  by  reason  thereof  the  plaintiff  has  not  only  lost  said 

premises,  but  also  the  sum  of dollars,  by  him  laid 

out  and  expended  in  and  upon  the  said  premises,  in  repairing 

and  improving  the  same,  and  also  the  sum  of   

dollars,  costs  and  charges  sustained  by  the  said  A.  B.,  in  prose- 
cuting his  action  for  the  recovery  thereof,   and  the   sum   of 

dollars,  for  his  own  costs,  charges  and  counsel 

fees  in  defending  said  action. 

§   1265.   Breach  of  covenant  of  warranty  —  another  form." 

Form  No.   336. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,  18..,  at 

,  the  defendant,  by  his  deed  of  that  date,  duly 

«o  Winter  v.  Stock.  20  Ca\.  407;  SO  Am.  Deo.  57. 

21  Gee  V.  Moore,  14  Cal.  472. 

22  Blafkwell  v.  Atkinson.  14  Cal.  470. 

23  nills  V.  Sherwood,  ?,?,  Cal.  474. 

24  Soe  Kelly  v.  Dntrh  Ohurfh  of  Schenectady,  2  Hill,  105. 
^>  .Tar-kson  v.   Marsh,  .")  Wend.  44. 

26  Coor)er  v.  Watson,  10  Wend.  202. 

27  Peabody  v.  Phelps,  9  Cal.  213. 


697  COVENANTS.  §   1266 

executed,  in  consideration  of  dollars,  sold  and 

conveyed  in  lee  simple,  to  tlie  plaintiff,  certain  land  [describe  it]. 

II.  That  the  defendant,  by  the  same  deed,  covenanted  as 
follows  [copy  the  covenant]. 

III.  That  the  defendant  had  not,  at  the  time  of  the  execution 
of  said  deed,  a  good  and  sufficient  title  to  said  premises,  and 

by  reason  thereof,  on  the day  of ,  18 .  .j 

at ,  the  plaintiff  was  ousted  and  dispossessed  of  the 

said  premises  by  due  course  of  law. 

[Or,  III.  That  one  G.  H.,  at  the  time  of  the  execution  of  the 
said  deed  and  from  thence,  had  lawful  right  and  paramount 
title  to  the  said  premises,  and  by  virtue  thereof,  after  the  exe- 
cution of  said  deed,  on  the    day  of    , 

18.  .,  entered  upon  the  possession  thereof,  and  ousted  and  dis- 
possessed  by  due  process  of  law,  and  kept,  and  still  keeps,  the 
plaintiff  from  the  possession  of  the  same.  That  the  plaintiff  has 
also  been  compelled  to  pay  the  costs  and  charges  sustained  by 

the  said  G.  H.,  in  prosecuting  a  certain  action  in  the 

court,  in county,  for  the  recovery  of  said  premises, 

which  amounted  to  dollars,  and  to  pay  out  the 

additional  sum  of dollars  in  endeavoring  to  de- 
fend such  action.] 

[Demand  of  Judgment.] 

8   1266.   By  assignee  of  grantee  against  previous  grantor. 
Form  No.  337. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  [Allege  sale  to  one  C.  D.] 

II.  [Allege  and  set  out  copy  of  covenant.] 

III.  That  the  said  C.  D.  afterwards,  on  the day  of 

,  18.  .,  at  ,  by  deed  duly  executed, 

in  considertion  of  the  sum  of dollars,  conveyed 

the  said  premises  to  one  E.  F.,  his  licirs  and  assigns;  and  tlio 

said  E.  F.  aftcnvards,  on  the   day  of   

18.  . ,  at 1)y  his  deed  of  that  date,  duly  executed, 

in  consideration  of  tlif  sum  of dollars,  conveyed 

the  pamo  proniises  to  the  plaintiff. 

TY.  Tliat  the  plaintiff  afterwards,  on  the    day  of 

18...  at   entered  into  and  was 

possessed  of  said  premisses. 
88 


§§  1267,  l'-ii)8  roK.Ms  of  comi'Laii^ts.  G98 

V.  That  tlie  deieiulaiit  had  nut  at  the  tiinc  ol  the  exccutiou 
of  his  said  deed,  nor  has  lie  siuee  liad,  a  good  and  suUicieut 
title  to  the  said  premises;  l)y  reason  whereol  the  plaintilL'  was 

afterwards,  on  the day  oI ,  18.  .,  ousted 

and  dispossessed  of  the  said  premises  by  due  eourse  of  law. 
[Demand  of  Judgment.] 

§   1267.   By  heirs  of  covenantee  against  previous  grantor. 
Form  No.  338. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  [Allege  sale  as  in  preceding  forms.] 

II.  [Allege  and  set  out  copy  of  covenant.] 

III.  That  the  said  C.  D.  afterwards,  and  on  the  same  day, 
entered  into  and  was  possessed  of  said  premises,  and  afterwards, 

on  the day  of ,  18 .  . ,  at , 

said  C.  D.  died,  whereupon  the  said  premises,  and  his  estate 
therein,  descended  to  the  plaintiffs,  as  children  and  coheirs  of 
the  said  C.  D.,  deceased;  and  that  they  afterwards,  on  the  same 
day,  entered  into  and  were  possessed  of  said  premises,  until 
ousted  and  dispossessed,  as  hereinafter  mentioned. 

[Here  set  forth  the  breach,  etc.,  as  in  the  preceding  forms.] 
[Demand  of  Judgment.] 

§   1268.  By  devisee  of  covenantee,  against  previous  grantor. 
Form  No.  339. 
[Title.] 
The  plaintiff  complains,  and  alleges: 
I.  and  II.   [Allege  sale  and  covenant.] 

III.  That  the  said  E.  F.,  afterwards,  and  on  the  same  day, 
entered  into  and  was  possessed  of  said  premises;  and  afterwards, 

on  the  ....>....  day  of ,  18 .  . ,  at , 

made  his  last  will  and  testament,  in  writing,  and  thereby, 
amongst  other  things,  devised  the  said  premises  to  the  plaintiff; 

and  afterwards,  on  the day  of  ,  18 .  . , 

at the  said  E.  F.  died,  leaving  such  will. 

IV.  That  on  the  day  of ,  18 .  . ,  the 

said  will  was  proved  and  admitted  to  probate  in  the  Probate 
Court  of,  etc.,  and  by  order  of  said  courts  letters  test<amentary 
were  issued.  [If  the  property  is  situated  in  a  county  other  thfin 
the  one  where  the  will  was  admitted  to  probate,  add:  That  after- 
wards, on  the day  of ,  18 .  . ,  by  an  order 

of  the  Probate  Court  of county  (where  the  prem- 


699  COVENANTS.  §§  1269,  1370 

ises  are  situated),  an  authenticated  copy  of  said  will,  from  the 
record  aforesaid,  with  a  copy  of  said  order  of  probate  annexed 
thereto,  waa  filed  of  record  in  the  Probate  Court  of  said  county 

of (where  premises  he),  and  duly  recorded.] 

V.  That  thereupon  the  plaintitf  entered  into  possession  of 
the  said  premises,  and  was  possessed  thereof  until  ousted  and 
dispossessed  as  hereinafter  mentioned.  [Set  forth  breach,  etc., 
as  in  preceding  forms.] 

[Demand  of  Judgment.] 

S   1269.  Warranty  as  to  quantity. 

Form  No.  340. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of   ,   18. .,  at 

,  the  defendant  warranted    a    certain    farm    in 

township, county,  state  of , 

to  contain acres  of  land,  and  thereby  induced  the 

plaintiff  to  purchase  the  same  from  him,  and  pay  to  him 
dollars  therefor. 

II.  That  the  said  farm  contained  only   acres, 

instead  of   acres,  the  quantity  sold  to  plaintiff 

by  defendant. 

III.  That  plaintiff  was  damaged  thereby  in  the  amount  of 
dollars. 

[Demand  of  Judgment.] 

I   1270.   On  covenant  ag-ainst  incumbrances  on  real  property. 
Form  No.  341. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18 .  . ,  at 

,  the  defendant,  in  consideration  of 

dollars,  to  him  paid,  granted  to  the  plaintiff  by  deed,  in  fee 

pimple,  a  farm  in  the  town  of county  of 

[or  otherwise  briofly  designato  the  property]. 

TT.  That  said  rloorl  rontained  a  ooA-onant  on  the  part  of  the 
dofonrlant,  of  which  the  fallowing  is  a  copy  [copy  of  covenant]. 

ITT.  That  at  the  time  of  the  making  and  delivorv  of  said 
dood  tho  premises  wore  not  frof>  from  all  incumbrance,  but  on 

tho  pontrary.  the  dpfendant  bofore  that  time,  on  tho 

dav  of  1 8 ...  at  bv  dood  in  the 

nature  of  a  morteaEfo,  dulv  executed,  bar!  mortgaged  the  said 


§    1*371  FORMS    OF    COMPLAINTS.  700 

premises  to  one  II.  S.,  to  secure  the  })a}ineut  of 

dollars,  with  interest. 

IV.  And  for  a  further  breach,  the  plaiutill'  alleges,  that  on 

the day  of ,  18 .  . ,  in  tho 

court  of  the    judicial  district  of    

county,  in  this  state,  judgment  was  rendered  against  the  defend- 
ant for  tho  sum  of (.K)llars,  in  an  action  in  which 

the  said  [incumbrancerj  was  plaintiif,  and  the  defendant  herein 

was  defendant,  which  judgment  was,  on  tho day  of 

,  18.  .,  docketed  in  said  county  of  [where  prem- 
ises are  situated]  and  which  judgment  at  tho  time  of  the  exe- 
cution and  delivery  of  the  deed  in  the  nature  of  a  mortgage, 
remained  unpaid  and  unsatisfied  of  record. 

Y.  And  for  a  further  breach,  the  plaintiff  alleges  that  at  the 
time  of  the  execution  and  delivery  of  said  deed  the  premises 
were  subject  to  a  tax  theretofore  duly  assessed,  charged  and 

levied  upon  the  said  premises  by  the  said  city  of , 

and  the  oflftcers  thereof,  of  the  sum  of dollars, 

and  which  tax  was  then  remaining  due  and  unpaid,  and  was 
at  the  time  of  the  delivery  of  said  deed  a  lien  and  incumbrance 
by  law  upon  the  said  premises. 

VI.  That  by  reason  thereof  the.  plaintiff  paid,  on  the 

day  of ,  18 .  . ,  the  sum  of dollars 

in  extinguishing  the  [here  state  what,  whether  the  judgment, 
lien,  tax  or  other  incumbrances,  or  all  of  them]   aforesaid,  to 

his  damage dollars. 

[Demand  of  Judgment.] 

§  1271.  Assignment  of  breach  —  payment  by  covenantee. 
A  breach  of  covenant  is  sufficiently  assigned  by  negativing  the 
words  of  the  covenant.^  If  tho  special  facts  to  negative  a 
covenant  are  necessarily  included  in  the  general  averment  of 
the  breach,  a  distinct  and  substantive  averment  of  them  is  not 
necessary.^  A  general  covenant  against  incumbrances  is  broken 
bv  the  existence  of  an  incumbrance  at  the  making  of  tho  deed. 
The  broach  must  set  out  the  particular  incumbrance'  relied  on.^^ 

28  McOoelian  v  McLaufr.hlin,  1  Hall.  ?>7;  see  Woolley  v.  Newoombe, 
87  N.  Y.  onr>. 

sflR.THflall  V.  C.  &  D.  Canal  Co.,  1  Harr.  1.^1;  Rreckonridse's 
Arlm'r  v.  Lee's  Ex'rs.  3  B4bb,  3.^0. 

•■'"Sliolton  r.  Pease.  10  Mo.  473:  .TiilJiand  v.  Rnrjrott,  11  .Tolins.  6; 
Thomas  v.  "Van  Ness,  4  Wend.  549;  compare  People  v.  Russell,  id. 
.''>70. 


701  COVENANTS.  §    l^'^'i^ 

That  certain  persons  recovered  judgment  against  the  owner, 
which  were  liens  and  incumbrances,  is  sufficient,  without  stat- 
ing the  fact  of  docketing  said  judgment,  or  its  legal  efiect.^^ 
A  covenant  that  the  whole  amount  of  a  judgment  is  due  is  not 
to  be  construed  to  mean  that  no  one  of  the  judgment  debtors 
has  been  released.^-  When  an  action  is  brought  on  the  breach 
of  a  covenant  in  the  contract,  it  is  enough  to  allege  the  con- 
veyance according  to  its  legal  effect,  showing  a  consideration 
for  the  covenant,  and  then  set  forth  a  copy  of  the  covenant,^^ 
thus  combining  the  two  systems  of  pleading  for  the  sake  of 
brcA-ity.  This  method  will  be  desirable  when  the  contract  is 
of  great  length.  So,  in  a  covenant  to  pay  certain  accounts,  it 
is  not  necessary  to  set  out  the  accounts  so  paid,  thereby  pro- 
ducing great  prolixity.^  Where  a  complaint  avers  a  sale  and 
conveyance,  the  existence  of  the  mortgage,  the  execution  of  the 
bond,  the  failure  of  the  defendant  to  comply  with  its  condi- 
tions, consequent  sale  of  the  premises  under  the  mortgage,  and 
their  loss  to  the  plaintiff,  it  was  held  sufficient  on  demurrer.^ 
And  consideration  need  not  be  alleged,  as  in  pleading  on  a 
sealed  instrument  the  seal  imports  consideration.  Without  the 
averment  of  payment  of  the  incumbrance,  plaintiff  can  recover 
only  nominal  damages.^^  Except  in  the  case  of  a  covenantee 
who  bought  for  the  purpose  of  a  resale,  with  notice  to  the  cove- 
nantor at  the  time  of  sale.^^  In  such  a  case  those  facts,  and  the 
diminution  in  value  of  the  estate,  and  the  expenditure  in  paying 
off  the  incumbrance,  should  be  alleged,  the  latter  as  a  special 
averment  of  damage.^^ 

§   1272.   The  same  —  description  of  land  conveyed.        A    brief 

description  will  be  sufficient  with  profert  of  conveyance.^® 

31  C?ady  V.  Allon.  22  Barb.  388;  see,  also,  Chamberlain  v.  Gorham, 
20  .Tolins.  740;  reversinjr  S.  C,  id.  144. 

32  Bennett  v.  Buc-han,  .'>  Abb.  Tr.  (N.  S.)  412. 
3^  Swan's  PI.  108. 

34  .Tones  v.  Hnrbaiiffh,  .5  N.  Y.  Leg.  Obs.  19. 

x:  ^rrParty  v.  Beach.  10  Cal.  401. 

30  Dolnverirnp  v.  Non-is,  7  .Tohns.  8.'>S;  r>  Am.  Dec.  281;  Hall  v. 
Denn.  ^P.  .Tolins.  10.");  Stanard  v.  I-^kliidpf,  10  Id.  2,54. 

37  T?affl'f1(lf>r  V.    Stnrfris.    ?,   C^usli.   201. 

3R  1)0  FnrpRt  v.  T.oote,  10  .Tolins.  122. 

3f)l  Sannd.  23.3.  n.  2;  2  Chit.  PI.  192,  n.  1;  Dunham  v.  Pratt,  14 
Johns.  372. 


§§  l'v'73-1275  roRMs  of  coMrLAixxs.  702 

i  1273.  Conditiou  precedent.  \\  licio  a  deod  contains  a  cove- 
nant that  in  catio  tlio  grantees  sliali  pay  a  certain  sum  of 
money  before  a  certain  day  "  then  tiiis  instrument  is  to  take 
eU'ect  aa  a  full  and  complete  conveyance  in  fee  of  all,"  etc.,  the 
payment  of  the  purchase  money  was  held  to  be  a  condition  pre- 
cedent to  vesting  the  estate."*^ 

§  1274.  Covenant  in  mortgage.  If  the  mortgagor  covenants 
to  pay  and  discharge  all  legal  mortgages  and  incumbrances,  the 
covenant  will  make  the  mortgagor  personally  liable  for  the  sum 
due  and  secured  by  an  executory  contract  for  a  mortgage  not 
under  seal  or  recorded  if  the  mortgagor  had  actual  notice  of  it, 
and  the  mortgage  will  become  security  for  the  performance  of 
the  covenant."*^  It  does  not  put  the  purchaser  from  the  mort- 
gagor upon  auy  inquiry  as  to  any  mortgages  or  incumljrances 
not  of  record.^^ 

§  1275.  Measure  of  damages.  A  party  having  been  defeated 
in  a  suit  against  him  for  damages  for  having  interfered  with 
an  easement  on  his  land  may  recover  of  his  warrantor  the 
damage  he  has  sustained  in  consequence  of  the  breach  of  the 
covenant  against  incumbrances,  and  such  costs  and  expenses  as 
he  has  fairly  and  in  good  faith  incurred  in  attempting  to  main- 
tain and  defend  his  title.*=^  He  was  not  bound  to  follow  the 
advice  of  his  w^arrantor  by  suing  the  party  who  claimed  the 
easement  and  entered  upon  the  premises.^'*  "  There  is,"  says 
Lord  Mansfield,  in  Lowe  v.  Peers,  "  a  difference  between  cove- 
nants in  general  and  covenants  secured  by  a  penalty  or  forfeit- 
ure. In  the  latter  case,  the  obligee  has  his  election;  he  may 
either  bring  an  action  of  debt,  and  recover  the  penalty,  after 
which  recovery  of  the  penalty  he  can  not  resort  to  the  cove- 
nant; or,  if  he  does  not  choose  to  go  for  the  penalty,  he  can 
proceed  upon  the  covenant  and  recover  more  or  less  than  the 
penalty  Mies  quoties."*^ 

40  Mesink  V.  Sunderlanrl.  C>  Cal.  207. 

41  Ttar-onillnt  v.  Sansovnin.  ?>2  Cal.  376. 

42  T?afouillnt  v.  Rene.  .32  Cal.  450. 

43  Smith  V.  Rpra.crue.  40  Vt.  43. 

44  Id. 

4.%  Rod^wick  on  Damacros.  424;  see  Lowe  v.  Peers,  4  Burr.  2225; 
also  Bird  v.  Randall,  1  W.  Bl.  373,  387;  Winter  v.  Trimmer,  id. 
395;  Harrison  v.  Wright,  13  East,  343.    The  use  and  meaning  of  the 


703  covEXANTS.  §§  lJ>rG-13:9 

§  1276.  Estoppel.  One  who  lias  covenanted  with  exeeutoi-s, 
ao  such,  that  tliird  persons  should  satisfy  and  discharge  a  mort- 
gage, is  thereby  estopped  from  denying  the  right  of  execuDors 
to  sue  on  such  covenant  in  their  representative  capacity.*"  But 
a  subsequent  grantee  may  maintain  an  action  against  the  grantor 
on  a  covenant.''^ 

§  1277.  Inciunbrances.  The  term  "  incumbrances  "  includes 
taxes,  assessments,  and  all  liens  upon  property.'***  No  tax  or 
assessment  can  exist  until  the  amount  thereof  is  ascertained  and 
determined.  Hence,  although  the  expense  has  been  incurred 
at  the  time  of  conveyance,  to  meet  which  a  local  assessment  is 
subsequently  laid  upon  the  premises  conveyed  which  are  legally 
chargeable  therewith,  such  assessment  does  not  constitute  a 
breach  of  the  covenant  against  incumbrances."'^  Only  nominal 
damages  can  be  recovered  until  after  actual  payment  of  the 
incumbrance.^'^ 

§  1278.  Purchase  after  breach.  A  purchaser  of  a  mill,  after 
breacli  of  covenant  by  a  railroad  company,  with  its  former  owner, 
to  dig  a  new  channel,  etc.,  for  the  mill  stream,  can  not  sue  on 
said  covenant.^^  Where  defendant  made  a  valid  agreement  with 
three  partners  not  to  do  business  in  a  certain  place,  and  two 
of  said  partners  sold  out  to  a  third,  and  left  said  place,  but 
the  third  resold  to  defendant,  and  released  said  agreement,  it 
was  held  that  the  other  two  partners  could  not  sue  for  a  breach, 
as  the  agreement  was  incident  only  to  the  business.^^ 

§  1279.  To  what  covenant  attaches.  Every  covenant  relating 
to  the  thing  demised  attaches  to  the  land,  and  runs  with  it.^^ 
But  where  the  warranty  in  a  deed  contains  a  covenant  to  "  war- 
rant and  defend  the  premises  conveyed,  from  and  airainst  all 
or  any  incumbrances,  claims  or  demands,  created,  made  or  suf- 

terms  "penalty"  and  "  liii'iidntpd  damapes  "  In  agreements  com- 
mr-nted  on  in  People  v.  Lovf%  10  Oal.  077. 

4«  Faridiani  v.  Mallory.  r,  Altb.  Pr.  (X.,S.)  380. 

47  Ool1)y  V.  Os;rood,  20  Barb.  .'',.'59. 

4«ral.  rivjl  Code,  §  1114. 

40  Dowdney  v.  Mayor,  etc..  7A  X.  Y.  IKO;  see  Do  Peysfer  v.  Murphy, 
.39  N.  Y.  Rnpr.  il  .T.  &  Rp.)  2r,Ti. 

«"  Rending  v.  r.ray,  .37  id.  79;  see.  also,  Rlythe  v.  Gately,  51  Cal. 
230.  MS  to  when  faxns  bcfomo  a  lien. 

Ri  .Tnnr-tlon  Tl.  R.  Co.  v.  Kayers,  28  Tnd.  .'{IS. 

B2  Ooiniwra  v.  Rochester,  .'>(!  I>nn.  St.  194. 

68  I^ffan  V.  Xaglee,  9  Cal.  002;  70  Am.  Dec.  678. 


§§    lv'80,  Iv'Sl  rOIJMS    OF    COMPLAINTS.  704 

fered,  by,  llirougli  or  uuder  liiui,  and  against  iioue  otlier/'  tlior 
warnuity  in  the  deed  attaelies  itsell  to  tlie  interest  eonveyed, 
and  not  to  the  land  itself/"*  A  covenant  of  seisin  runis  witli 
the  land  and  is  divisible,  so  that  if  tlic  land  he  sold  in  parcels  to 
dill'erent  purchasers,  each  may  maintain  an  action  on  the  cove- 
nant.^*^  Wiiere  the  covenantee,  in  a  deed  of  land,  talces  posses- 
sion and  conveys,  a  covenant  oL'  waiianty  in  the  deed  to  him 
will  pass  to  his  grantee,  although  tlic  covenantor  was  not  in 
possession  at  the  time  of  his  conveyance/*^  A  covenant  to  con- 
vey, contained  in  a  lease,  runs  with  the  land  and  may  be 
assigned.^'^ 

§  1280.  The  same,  where  the  deed  expressed  specific  incum- 
brance. 

Form  No.  342. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  [As  in  preceding  form.] 

II.  That  by  said  deed  the  premises  eonveyed  were  described 
as  being  subject,  nevertheless,  to  the  payment  of  a  certain  mort- 
gage recorded  in  the  recorder's  office  at ,  on  the 

da.y  of ,  18. .,  in  Book  A,  of  Mortgages 

[or  other  incumbrance,  describing  it],  and  no  other  incum- 
brances were  mentioned  or  specified  in  said  deed,  as  existing 
upon  or  affecting  said  premises  or  the  title  thereto. 

III.  That  said  deed  contained  a  covenant  on  the  part  of  the 
defendant,  of  which  the  following  is  a  copy  [copy  covenant]. 

IV.  That  at  the  time  of  the  making  and  delivery  of  the  said 
deed,  the  premises  were  not  free  from  all  incumbrances  other 
than  the  mortgage  therein  excepted,  but  on  the  contrary  [bore 
set  out  any  or  nil  other  incumbrances  as  breaches,  and  conclude 
as  in  preceding  form]. 

[Demand  oe  Judgment.] 

§  1281.  Implied  covenant.  Where  a  deed  containintr  the 
words  "grant,  bargain,  and  sell,"  recites  a  mortgage  existing 
at  the  time  of  the  conveyance,  with  a  warranty  against  the  same, 

54  Kimball  v.  Somple,  2.5  Cal.  440. 

5R  Rplinfiplfl  V.  The  Homestead  Co..  32  Iowa.  ?,\1\  7  Am.  Rop.  197. 

PR  Weed  v.  T>arldn,  M  Til.  489:  ,5  Am.  "Rep.  140. 

S7TTaerar  v.  Buck.  44  Vt.  28.1:  R  Am.  Rep.  r'.OS.  WliPn  coyonnnt  to 
make  and  mnintain  fence  mns  with  the  land,  see  Bronson  v.  Coffin, 
108  Ma.ss.  17.'>;  11  Am.  Rep.  335. 


705  COVENANTS.  §§  1282-1384 

the  general  covenant  implied  by  the  words,  "  grant,  bargain,  and 
sell,''  is  restrained  by  the  special  covenant. ^^  And  the  special 
covenant  is  not  a  covenant  to  pay  the  mortgage. 

§  1282.  Mortgage.  When  premises  are  described  in  the  grant- 
ing part  of  a  deed  as  subject  to  a  mortgage,  such  mortgage  will 
not  be  in  the  covenant  against  incumbrances.^^  A  covenant  by 
a  vendor  of  real  estate,  that  neither  he  nor  his  assigns  will  sell 
any  marl  from  the  adjoining  premises,  will  not  be  enforced  in 
equity  against  the  alienee  of  the  land  intended  to  be  burdened 
Avith  the  covenant.^" 

g   1283.  On  a  covenant  of  seisin,  or  of  power  to  convey. 
Form  No.  343. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18..,  the 

defendant,  for  a  valuable  consideration,  by  deed,  conveyed  to  the 
plaintiff  in  fee  simple  [describe  the  property]. 

II.  That  said  deed  contained  a  covenant  on  the  part  of  the 
defendant,  of  which  the  following  is  a  copy  [copy  of  covenant]. 

III.  That  at  the  time  of  the  execution  and  delivery  of  said 
deed,  the  defendant  was  not  the  true,  lawful,  and  rightful 
owner,  and  had  not  in  himself  at  said  time  good  right,  full 
power,  etc.  [negative  the  words  of  the  covenant]. 

lY.  "Whereby  the  plaintiff  has  sustained  damages  in  the  sum 

of dollars. 

[Demand  of  Judgment.] 

§  1284.  Essential  averments.  In  an  action  of  covenant  it 
must  appear  in  the  complaint  with  whom  the  covenant  was 
made,  the  performance  or  readiness  to  perform,  or  the  excuse 
for  nonperformance  of  a  condition  precedent,  at  the  place  and 
within  the  time  specified.®^  An  action  can  not  be  maintained 
on  a  covenant  of  seisin,  unless  a  breach  and  an  evict-ion  be 
alleged .''2     And  when  there  has  not  been  an  eviction,  some- 

BRRholton  V.  Ppaso.  10  y\n.  47.'?. 

00  Freeiiinn  v.  FostPr,  .%."  ;Mf>.  ZA)9<. 

flo  Brewer  v.  Marshall.  4  C.  E.  rjreon.  T^?,!. 

«i  Konlley  v.  Mel-antrlif  i-ty,  4  Mo.  221. 

«2i{ohlnHon  V.  Nell.  ?,  Ohio,  U2'^\  Klnj,'  v.  Kerr's  Adm'r.  ."^  id.  155; 
22  Am.  Dee.  777:  see  Bowno  v.  Woleott,  1  N.  Dak.  497;  Mygatt  v. 
Coe,  124  N.  Y.  212. 

Vol.  T— R9 


I  1285  FORMS  OF  COMPLAINTS.  706 

tiiiiig  iHiuivalout  must  be  averred.^^  It  is  sufficieut  to  negative 
the  words  of  the  covenant."'*  It  is  not  necessary  tliat  a  breacii 
of  a  covenant  should  be  assigned  in  the  very  words  of  the 
covenant.     It  is  sufficient  to  aver  what  is  aubstanlially  a  breach.*'"'' 

§  1285.  Implied  covenants.  A  deed  containing  the  words 
"  grant,  bargain,  sell,  and  enfeoit","  is  operative  as  a  deed  of 
feoffment,  and  liveiy  of  seisin  is  not  necessary.*"^  iVnd  under 
the  statute  of  Missouri,  it  was  held  that  they  are  separate  and 
independent  of  each  other.**^  In  Illinois,  the  words  "grant, 
bargain,  and  sell,"  express  covenants  that  the  grantor  is  seised 
of  an  indefeasible  estate  in  fee  simple,  free  from  incumbrances 
done  or  suffered  by  the  grantor,  as  also  for  quiet  enjoyment 
against  the  grantor,  his  heirs  and  assigns.^*  It  embraces  such 
incumbrances  only  as  the  vendor  has  control  of,  and  not  an 
outstanding  mortgage  created  by  his  grantor."^  In  California 
the  Civil  Code  provides  that  "  from  the  use  of  the  word  '  grant ' 
in  any  conveyance  by  which  an  estate  of  inheritance  or  fee 
simple  is  to  be  passed,  the  following  covena.nts,  and  none  other, 
on  the  part  of  the  grantor,  for  himself  and  his  heirs  to  the 
grantee,  his  heirs  and  assigns,  are  implied,  unless  restrained 
by  express  terms  in  such  conveyance:  1.  That  previous  to  the 
time  of  the  execution  of  such  conveyance,  the  grantor  has  not 
conveyed  the  same  estate,  or  any  right,  title,  or  interest  therein, 
to  any  person  other  than  the  grantee;  2.  That  such  estate  is  at 
the  time  of  the  execution  of  such  conveyance  free  from  incum- 
brance done,  made,  or  suffered  by  the  grantor,  or  any  person 
claiming  under  him.  Such  covenants  may  be  sued  upon  in 
the  same  manner  as  if  they  had  been  expressly  inserted  in  the 
conveya-ace.""^"  Prior  to  the  Code,  however,  it  was  hold  that 
where  there  are  no  covenants  of  seisin,  etc.,  in  the  deed  the  law 
will  not  imply  other  covenants  than  those  for  quiet  possession.'^' 

fis  ■Robinson  v.  Neil,  .S  Ohio,  525;  Kinp  v.  Kerr's  Adm'r,  5  irl.  155; 
22  Am.  De<}.  777;  McGarry  v.  Hastings,  89  Cal.  360:  2  Am.  Rep.  456. 
«4  4  Kent's  Com.  479:  Eiokert  v.  Snyder,  9  Wend.  416. 
««5  Fletcher  v.  Peck.  6  Cranoh,  87. 
ar,  Pprry  v.  Price.  1  ^f  o.  .553. 
«7  Aloxnnder  v.   Schreiher,  10  Mo.  46. 
«SMosly  V.  Hunter,  15  :Mn.  .322. 
«9  Armstrone:  v.  Darby.  26  Mo.  517. 

70  Cal.  Civil  Code,  §  1113. 

71  Fowler  v.  Smith.  2  Cal.  39. 


r07 


COVENANTS.  §§   1286-1288 


§  1286.  Damages,  measure  of.  When  the  grantor,  in  a  deed 
containing  a  covenant  of  seisin,  has  not  title  to  the  land,  the 
covenant  is  broken  the  instant  it  is  made.'^  Such  a  covenant  is 
an  assurance  to  the  purchaser  that  the  grantor  has  the  estate 
both  in  quantity  and  quality.'^  But  where  the  vendor  was 
actually  seised,  but  of  a  defeasible  estate,  the  damages  should  be 
merely  nominal  until  the  estate  ha^  been  actually  defeated.'^* 
The  rule  of  damages,  where  there  has  been  an  actual  loss  of 
the  premises,  is  the  purchase  money  and  interest.  Where  the 
plaintiff  has  purchased  the  paramount  title,  it  is  the  sum  actually 
and  in  good  faith  paid  for  the  paramount  title,  and  the  amount 
expended  in  defending  his  possession;  provided  such  damages 
shall  in  no  case  exceed  the  purchase  money  and  interest.^^ 

§  1287.  Death  of  covenantor.  Where  the  covenantor  dies  be- 
fore the  discovery  of  the  defect  of  title,  and  his  personal 
representatives  procure  a  good  title,  and  tender  a  deed  to  the 
covenantee,  a  court  of  equity  will  compel  him  to  accept  such 
conveyance,  and  enjoin  a  judgment  at  law  for  a  breach  of  the 
covenant.'^® 

§   1288.   Grantee's  covenant  to  build. 
Form  No.  344. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  in  consirleration  that  the  plaintiff  would  sell  and  con- 
vey to  the  defendant  a  lot  of  land  [describe  it],  for  the  sum  of 

dollars,  the  defendant,  on  the flay  of 

,  18.  . ,  agreed  that  he  would  erect  upon  the  prem- 
ises a  goof]  brick  house,  to  be  occupied  as  a  dwolling.  and  that 
he  would  not  erect  upon  the  premises  any  building  that  would 
be  a  nuisance  to  the  vicinity  of  the  premises. 

TT.  That  the  plaintiff  did  accordingly  sell  and  convey  to  the 
defendant  said  premises  for  said  sum,  but  the  defendant  has 

T2  Nichols  v.  Nichols.  ^  Hun.  108. 

73  Pecare  \.  Clionteau,  13  Mo.  .527. 

T-^Ropse  V.  Jiniith.  12  Mo.  344;  Birclier  v.  Watklns,  13  id.  521; 
^fosely  V.  Ilnntrr,  IT.  id.  322:  seo.  also,  Cowdeiy  v.  Coit,  44  N.  Y. 
.3R2;  4  .Am.  Rop.  000. 

T^yU-Clavy  V.  ITastinpa,  30  Cn\.  300;  2  Am.  Rep.  4r)n;  sec.  also. 
Sears  v.  Sfinson,  3  Wa><li.  St.  01.");  Price  v.  Deal,  90  N.  C.  290;  ITunta- 
man  v.  ITendricl<.s.  44  Minn.  42.3. 

Tfl  Reese  v.  Smith,  12  Mo.  344. 


§§    128U-r-?92  FORMS    OF    COMPLAINTS.  708 

not  erected  a  good  brick  liou^e  on  tlio  lot,  to  be  occupied  as  a 
dwelling;  but,  on  the  contrary,  haa  erected  upon  said  preniitietj  a 
wooden  buikling,  to  be  used  as  a  slaughter-house. 

111.  That  the  defendant  thereby  has  prevented  other  lots  in 
the  vicinity,  owned  by  the  plaintiir,  from  becoming  valuable  to 
the  plaintiir,  as  they  would  otherwise  have  become,  and  has  in- 
juriously atfected  their  condition,  and   hindered  the  plaintiff 

from  selling  them;  to  his  damage dollars. 

[Demand  of  Judgment.] 

§  1289.  Covenant  to  build  pai-ty  wall.  A  covenant  between 
A.  and  B.,  owners  of  adjoining  premises,  that  A.  may  build  a 
party  wall,  half  on  each  lot,  and  that  when  B.  uses  the  same  he 
shall  pay  half  its  cost,  is  personal,  and  does  not  pass  with  the 
land  to  A.'s  grantee.'^''^ 

§  1290.  Covenant  to  remove  buildings.  A  covenant  entered 
into  between  owners  of  adjoining  city  lots,  for  themselves  and 
all  claiming  under  them,  to  the  effect  that  all  buildings  erected 
on  such  lots  shall  be  set  back  a  specified  distance  from  the  line 
of  the  street  on  which  the  lots  front,  is  a  covenant  which  equity 
will  enforce  between  the  parties  to  it,  in  favor  of  one  against 
the  other,  or  in  favor  of  one  against  any  subsequent  grantee 
of  either  lot.'^^  "Where  the  lessee  stipulates  to  surrender  the 
premises  at  the  end  of  the  term,  "  reasonable  use  and  wear 
thereof,  and  damages  by  the  elements,  excepted,"  it  does  not 
authorize  the  tenant  to  remove  buildings  erected  by  him  on  the 
lot,  even  if  there  be  evidence  of  an  oral  agreement  to  that  effect.™ 

§  1291.  Special  damages.  In  an  action  to  recover  damages 
for  the  breach  of  a  contract,  if  the  damages  do  not  necessarily 
arise  from  the  breach  complained  of,  so  as  to  be  implied  by  law, 
the  plaintiff  must  specify  in  his  declaration  the  particular  dam- 
age he  has  sustained,  or  he  will  not  be  permitted  to  give  evi- 
dence of  it.^® 

§  1292.  stipulation  to  build.  "Where  the  lessee  stipulated  to 
build  a  wharf,  but  specified  no  particular  time,  the  lessor,  before 
the  expiration  of  the  term,  could  have  no  legitimate  cause  of 

77  Block  V.  Isham.  2.S  Tnd.  37;  92  Am.  Dec.  287. 

78  Roberts  v.  Levy.  ?>  Abb.  Pr.  (N.  S.)  311. 
79.Tunpprman  v.  P.ovoe,  19  Cal.  35.5. 
SOBogert  V.  Burkhalter,  2  Barb.  525. 


709  COYEXANTS.  §§  1293-1295 

complaint.*^  If  the  lessee  covenants  to  build  on  the  demised 
jjremises  within  a  given  time,  the  covenant  is  not  a  continuing 
covenant,  and  if  he  fails  to  build,  the  receipt  of  rent  by  the 
lessor  accruing  after  the  end  of  the  time  given  is  a  waiver  of  the 
forfeiture.^- 

§  1293.  On  covenant  against  nuisances  —  by  grantor  against 
giantee. 

Form   Xo.   345. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18..,  at 

,  the  plaintiff,  by  his  deed,  conveyed  to  the  de- 
fendant, for  a  valuable  consideration,  as  well  as  in-  consideration 
of  the  covenant  hereinafter  mentioned,  a  lot  of  land. 

II.  That  said  deed  contained  a  covenant  on  the  part  of  the 
defendant,  the  grantee  therein,  of  which  the  following  is  a  copy 
[copy  of  covenant  against  nuisances]. 

III.  That  said  deed  was  delivered  by  the  plaintiff,  and  by  the 
defendant  duly  accepted. 

IV.  That  the  defendant  has  erected,  and  suffered  and  per- 
mitted to  be  erected,  on  said  premises,  a  building  occupied  and 
used  as  a  slaughter-house. 

Y.  That  the  offal  and  blood  in  and  carried  out  from  said 
slaughter-house,  and  the  offensive  smell  created  thereby,  is  a 
nuisance  to  the  vicinity  of  the  said  premises  and  to  the  plaintiff, 

whose  house  is  adjoining;  to  his  damage dollars. 

[Demand  of  Judgmext.] 

S  1294.  Alleged  nuisance.  In  such  an  action  it  must  be 
shown  what  tlio  alleged  nuisance  is,  and  how  it  has  injured  the 
complainant.^^ 

§   1295.   On  a  continuing  covenant  to  maintain  a  fence. 
Form  No.   346. 
[Title.] 
Tlie  plaintiff  complains,  and  nlloges: 

T.  That  on  the   day  of   , 18..,  the 

plnintifF  and  defendant  fhon  were  the  owners  of  lands  adjoin- 
in'/,  find  then  made  an  agreement  in  writing,  under  tboir  hands 
and  coals,  of  which  the  following  is  a  copy  [copy  agreement]. 

Ri  Cliipman  v.  Emerir.  .^  Pal.  40:  ai  Am.  Deo.  SO. 
RZMr-nivnn  v.  Moorp.  2T^  Pnl.  .^R4. 
"3  Rocart  V.  r.iirklialh-r.  2  Barb.  .'2.'). 


§§  r^9(),  1397      FORMS  OF  COMPLAINTS.  710 

11.  Tliat  the  plaiuiiil  luisi  dulj  pciluiiiicd  all  the  conditions 
theroul  on  his  pail. 

Hi.  That  the  defendant  did  not,  after  the  erection  of  said 
fence,  maintain  the  same  and  keep  it  in  continual  repair,  but 
on  the  contrary,  in  the  month  of ,  18. .,  he  suf- 
fered the  same  to  become  dilapidated  and  broken  down,  and  to 

remain  in  that  condition  from  that  time  until  the   

day  of ,  18.. 

lY.  That  by  means  thereof  the  plaintiff  suffered  great,  damage 
by  the  injury  to  his  lands  and  crops  thereon,  and  his  garden 
and  fruit  trees,  by  cattle  coming  through  said  dilapidated  fence 
from  the  defendant's  land  upon  the  plaintiff's  premises,  and 
that  plaintiff'  was  compelled  to  repair  and  rebuild  said  fence, 
in  order  to  protect  liis  land  from  the  damage  caused  by  said 

cattle;  to  the  damage  of  tlie  plaintiff' dollars. 

[Demand  of  Judgment.] 

§  1296.  Damages  on  former  suit.  Where  damages  have  been 
recovered  in  a  former  action  on  the  same  cause,  it  is  proper 
to  allege  that  fact,  and  that  damages  now  sued  for  accrued  since 
the  commencement  of  the  former  action.^* 

§  1297.  Lessor  against  lessee,  on  covenant  to  keep  premises  in 
repair. 

Form  No.  347. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of  1. . . .,  18. .,  by  a 

lease  in  writing  under  their  hands  and  seals,  the  plaintiff  leased 
to  the  defendant,  and  the  defendant  rented  from  the  plaintiff' 

for  one  year  from  said  date,  at  a  monthly  rent  of 

dollars,  a  certain  dwelling-house  in ,  in  the  county 

of ,  the  property  of  the  plaintiff. 

II.  That  said  lease  contained  a  covenant  on  the-  part  of  the 
defendant,  of  which  the  following  is  a  copy  [copy  of  the  cove- 
nant]. 

HI.  That  the  defendant  entered  upon  the  premises  and  occu- 
pied the  same  during  the  said  term  of  one  year,  under  said 
agreement;  but  that  he  has  failed  to  Vooi)  the  said  housn-  and 
premises  in  good  repair;  but,  on  the  contrary  [state  injuries  to 

^*  Rpokwith  y.  Oriswolfl.  2n  Barb.  201.  As  to  the  ncrht  to  veoover 
flama.cps  for  rosnUins  injury  and  for  noopssarv  repairs  combined, 
Bee  Beach  v.  Grain,  2  N.  Y.  86;  49  Am.  Dec.  369. 


711  COVENANTS.  §§   1298-1300 

premises  J,  and  the  house  and  the  premises  otherwise  injured 
by  reason  of  the  neglect  of  the  defendant  to  keep  them  m  good 

repair,  to  the  damage  of  the  plaintiil dollars. 

[Demand  of  Judgment.] 

§  1298.  Assigning  breach.  In  a  declaration  upon  an  agree- 
ment, by  which  the  lessor  stipulated  to  let  a  farm,  from  Janu- 
ary 1,  1820;  to  remove  the  former  tenants,  and  that  the  lessee 
should  have  the  tenancy  and  occupation  of  the  farm  from  that 
day,  free  from  all  hindrance;  the  assignment  of  the  breach  was 
that,  although  specially  requested  on  January  1st,  the  defendant 
refused  and  neglected  to  turn  out  the  former  tenant,  who  was 
then,  or  had  been,  in  the  possession  and  occupancy  of  the  land, 
and  to  deliver  possession  thereof  to  the  plaintiff.  Such  allega- 
tion was  held  sufficient.^^  To  aver  plaintiff's  readiness  and 
offer,  as  made  on  the  1st  day  of  January,  was  sufficient.  They 
need  not  be  averred  to  have  been  made  at  the  last  convenient 
hour  on  the  day.  Nor  need  they  be  averred  to  have  been  made 
on  the  land.^® 

§  1299.  Copy  of  covenant.  The  entire  lease  need  not  be  set 
out,  only  such  covenants  as  relate  to  the  breaches  assigned.^^ 
But  where  the  breach  assigned  relates  to  a  violation  of  the 
obligation  arising  out  of  the  relation  of  landlord  and  tenant, 
state  the  hiring,  and  set  out  a  copy  of  the  lease.  The  facts  out 
of  which  the  duty  or  obligation  arose  ought  to  be  stated.^^ 

§  1300.  Covenants  in  leases,  interpretation  of.  A  covenant 
in  a  lease  to  be  renevred  indefinitely  is  in  effect  the  creation 
of  a  perpetuity,  and  is  against  the  policy  of  law.^^  In  California 
leases  of  agricultural  lands  for  over  ten  years,  where  rent  of 
any  kind  is  reserved,  and  of  city  lots  for  over  twenty  yeara, 
are  void.®*^  ^Vhere  a  lease  contains  a  covenant  against  assign- 
ment, and  the  restriction  is  once  removed,  it  operates  as  a  re- 
moval forever.®^     A  covenant  that  if  the  lessor  shall   sell   or 

85  Carroll  v.  Peako,  1  Pet.  18. 
8«  Id. 

87  Sanrlford  v.  Hnlsey,  2  Den.  23.^. 

88  City  of  Buffalo  V.  Holloway.  7  N.  Y.  4^;  .'">7  Am.  Doc.  5n0; 
Buffalo,  City  of,  v.  Ilolloway.  14  Barb.  101:  Onngreve  v.  Morgan, 
4  Duor.  430;  Seymour  v.  Maddox.  If,  Q.  B.  326;  S.  C,  71  Ens.  Com. 
L.  320. 

89  Morrison  v.  IvossIlmicI.  .'  Cal.  Oil. 
eo  Civil  rv.dp.  §S  717.  71 S. 

81  Cliipman  v.  Emeric,  r.  Cal.  40;  03  Am.  Doc.  SO. 


§§  1301-1302a  FORMS  of  complaints.  713 

dispose  of  tlie  doniisod  premises,  the  lessee  is  to  be  entitled  to 
tlie  rel'iisal  of  the  same,  is  a  eoveuaut  running  witli  tlie  land.'*^ 
A  description  in  a  lea^se  as  "  a  certain  lot  of  land,  etc.,  to- 
gether with  the  improvenlents  thereon,  consisting  of  the  dwell- 
ing known  as  the  Hotel  de  France,"  is  not  an  implied  guarajity 
that  tJie  hotel  shall  remain  on  the  lot  during  the  term.^^  A 
covenant  to  pay  rent  quarterly  is  not  a  debt  until  it  becomes 
due;  for  before  that  time  the  lessee  may  quit  with  the  consent 
of  the  lessor,  or  he  may  assign  his  term  with  his  consent,  or 
he  may  be  evicted  by  a  title  paramount  to  that  of  the  lessor.*^ 
A  clause  in  a  lease  exempting  the  tenant  from  liability  to  re- 
store house  in  case  of  fire,  does  not  relieve  from  rent  in  case 
of  such  destrnction.^ 

§  1301.  Damages  by  the  elements.  Those  acts  are  to  be  re- 
garded as  the  acts  of  God  which  do  not  happen  through  human 
agency,  such  as  storms,  lightnings,  and  tempests.^^  Damages 
"  by  the  elements  "  are  damages  by  the  act  of  GodJ 


97 


§  1302.  Exceptions  in  covenant  to  repair.  In  an  action  on  a 
covenant  in  a  lease  to  repair,  followed  by  an  exception  in  a 
distinct  clause,  the  complaint  need  not  notice  the  exception.^^ 

§  1302a.  Breach  of  covenant  to  pay  taxes.  In  an  action  by  a 
lessor  for  the  breach  of  a  covenant  by  the  lessee  to  pay  taxes, 
it  is  not  essential  to  the  statement  of  a  cause  of  action  that  the 
complaint  should  specifically  allege  all  the  steps  necessary  to 
constitute  a  vahd  assessment.  A  general  allegation  in  the  com- 
plaint showing  that  the  demised  premises  were  assessed  for  state 
and  county  purposes,  and  the  amount  of  the  taxes  due  thereon, 
is  sufficient,  when  tested  by  a  general  demurrer.®^ 

82  Laffan  v.  Naglee,  9  Cal.  662;  70  Am.  Dec.  678. 

M  Branger  v.  Manciet,  .SO  Cal.  62s4. 

94  Wood  V.  Partridge.  11  Mass.  488;  cited  in  People  v.  Arguello, 
37  CaJ.  524.  A  complaint  which  declares  on  an  express  covenant 
to  pay  rent  need  not  allege  ownersliip  of  tlie  premises,  occupancy 
by  the  defendant,  or  the  performance  hy  the  i)laintiff  of  any  con- 
ditions except  such  as  are  required  by  the  contract  as  pleaded. 
Havenipyer  v.  Switzer,  .37  N.  Y.  Supp.  3.^2. 

S")  Reach  V.  Parish,  4  Cal.  3.39. 

»«  Polaclc  V.  Pioche,  3.5  Cal.  416;  9.5  Am.  Dec.  115. 

87  Id. 

88  Trustees  of  New  Castle  Common  v.  Stevenson,  I  Houst.  (Del.) 
4.51. 

98  Ellis  V.  Bradbury,  75  Oal.  234. 


713  cov£XA2sis.  §§  1303-1305 

§  1303.  Forfeiture.  If  the  landlord,  after  default,  accepts  the 
rent,  he  thereby  waives  the  forfeiture,  and  can  not  afterwards 
insist  upon  it,  and  much  less  can  the  tenant  be  allowed  to  say 
that  he  is  discharged  from  liis  covenants  by  his  own  default  in 
the  payment  of  rent.^*^"  In  relation  to  leases  for  years,  as  well  as 
those  for  life,  the  happening  of  the  cause  of  forfeiture  only 
renders  the  lease  void  as  to  the  lessee.  It  may  be  affirmed  as 
to  the  lessor,  and  then  the  rights  and  obligations  of  both  parties 
continue  without  regard  to  the  forfeiture. ^°^  The  tenant  can 
not  insist  that  his  own  act  amounted  to  a  forfeiture.  If  he 
could,  the  consequence  would  be,  that  in  every  instance  of  an 
action  on  the  covenant  for  rent  brought  on  a  covenant  with  a 
proviso  of  forfeiture  of  nonperformance,  the  landlord  would  be 
defeated  by  the  tenant  showing  his  own  default  at  a  prior 
period. ^''^ 

§  1304.  Lease  as  evidence.  In  California,  leases  for  more 
than  one  year  must  be  in  writing,  but  for  a  less  term  a  verbal 
lease  is  Fufficient.^*^^  In  New  York,  the  plaintiff  may  intro- 
duce in  evidence  a  lease  not  under  seal,  to  prove  that  the  relation 
of  landlord  and  tenant  existed,  and  what  was  the  rent  agreed 
iipon.^^ 

§  1305.  Under-lease.  One  who  takes  an  under-lease  is 
bound  by  all  the  covenants  in  the  original  lease.^^'^  So  the  sale 
of  spirits  in  bottles  by  a  grocer,  is  a  breach  of  a  covenant  that 
premises  shall  not  be  used  "as  an  inn,  public  house,  or  tap- 
room, or  for  the  sale  of  spirituous  liquors."^"*'  An  under-lease 
of  a  whole  term  amounts  to  an  assignment. ■^'^''^ 

i"n  Bellas  v.  Davis.  38  Cal.  2.50. 

Ill  riarko  V.  .Tonos.  1  Den.  .")in;  4.*^  .\m.  Dec.  700;  Kode  v.  Farr, 
n  M.  fc  S.  121:  Bollof  V.  Davis,  sv^-a. 

102  Doe  doin.  BrA-an  v.  Banks,  4  Bam.  <S:  Aid.  400;  cited  in  Belloo 
V.  Davis,  stifyra,  rcfeiTinp:  also  to  Stnvvesant  v.  Davis,  0  Palpp.  427; 
Oanfield  v.  Westfott,  .'>  C-avr.  270;  and  tlip  distinrtion  drawn  hotwoon 
these  oases  and  tlie  rase  of  TTemp  v.  Oarland,  4  Q.  B.  .519;  .^  Oalf 
A-  Davidson,  402;  4.5  Entr.  Com.  li.  .510;  see.  also.  vol.  2,  "  Landlord 
and  T«'nant." 

10.T  Civil  rndo.  8  ir.24. 

"^•♦Williams  v.  Rliormaii.  7  \'\'ond.  lOf). 

lonpollden  v.  Slater,  T>.  B.,  7  Eq.  r,2?,. 

iw  Id. 

lOTBeardman  v.  Wilson.  T-.  B.,  4  C.  P.  57. 

90 


§§    loUG-loU8  lOli.MS    UK    CO.Ml'LAlxNTS.  ill 

§  1306.  Void  lease.  .V  iuabc  lor  two  yoai's,  executed  by  the 
k'bboos  and  by  an  agent  of  the  leBsorb,  bub  who  had  not  written 
autliority  to  do  so  is  void.^"**  Wliere  a  clause  of  renewal  in  a 
lease  discloses  no  eertiiin  basis  for  ascertaining  the  rent  to  be 
paid,  such  clause  is  void  for  uncertainty.^"""^  So  a  covenant  '*  to 
let  the  lessor  have  what  laud  he  aiul  liis  brothers  might  want 
for  cultivation/"  is  void  for  uncertainty. ^^*^ 

§  1307.  Lessee  against  lessor,  for  not  keeping  premises  in 
repair. 

Form  No.  348. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of  ,  18.  .,  by  a 

lease  made  between  the  plaintiff  and  the  defendant,  under  their 
hands  and  seals,  the  defendant  leased  to  the  plaintiff,  and  the 
plaintiff  rented  from  the  defendant,  the  premises  known   as 

No , street,  in   ,  for 

months  from  that  date,  at  the  monthly  rent  of 

dollars. 

II.  That  said  lease  contained  a  covenant  on  the  part  of  de- 
fendant, of  which  the  following  is  a  copy:  [Copy  of  covenant 
to  keep  in  repair.] 

III.  That  the  plaintiff  entered  into  possession  of  said  prem- 
ises under  said  lease,  and  used  the  same  as  a  warehouse  for 
storing  various  articles  of  merchandise. 

IV.  That  the  defendant  has  failed  to  keep  the  premises  in 
repair,  ano  has  allowed  [state  neglect  and  special  damage  caused 
thereby],  to  the  damage  of  the  plaintiff dollars. 

[Demand  of  Judgment.] 

§  1308.  General  covenant  to  repair.  If  the  embankment  of 
a  natural  reservoir,  which  is  filled  with  water  by  unusual  rain, 
is  broken  by  a  stranger,  so  that  the  demised  premises  are  injured 
by  the  water,  the  injury  is  not  the  act  of  God  or  of  the  elements, 
and  the  tenant  is  bound  to  repair,  even  if  damages  by  the  ele- 
ments or  arts  of  Providence  are  excepted  from  bis  covenant. ^^^ 
A  general  rovonant  to  repair  is  binding  upon  the  tenant  under 

i"s  Folsom  V.  Perrin.  2  Tal.  n03. 

if^fl  !Morrison  v.  Piossicrnel.  .t  Oal.  6.^. 

noriiipman  v.  EmenV.  5  Cnl.  40;  C^,  Am.  Dec.  80. 

"1  Polack  V.  Pioche,  ?,'}  Cal.  416;  9.5  Am.  Dec.  115. 


715  covEXAXTS.  §§  1309-1311 

all  circumstances,  even  if  the  injury  is  from  the  act  of  God  or  a 
stranger.^^^ 

§  1309.  Implied  obligation.  Defendant  entered  upon,  occu- 
l)ied,  and  paid  rent  tor  premises  under  a  demise  for  a  term  of 
years,  made  on  behalf  of  a  corporation,  the  owners,  but  not 
.-ealed  with  the  corporate  seal.  By  this  agreement  defendant 
undertook  to  make  certain  repairs;  it  was  held  that  he  was 
I)ound  by  his  stipulation.  He  had  become  tenant  from  year  to 
year,  on  the  terms  of  the  demise  applicable  to  such  tenancy.^^^ 

§  1310.  Joint  lessors.  Where  a  lease  was  made  by  several 
owners  of  a  house,  reserving  rent  to  each  one  in  proportion  to 
his  interest,  and  there  was  a  covenant  on  the  part  of  the  lessee 
that  he  would  keep  the  premises  in  good  repair,  and  surrender 
them  in  like  repair,  this  covenant  was  joint  as  respects  the  les- 
sors, and  one  of  them  (or  two  representing  one  interest)  can. 
not  maintain  an  action  for  the  breach  of  it  by  the  lessees.^^^ 

§  1311.  Lessee  against  lessor,  for  not  completing  building  ac- 
cording to  agreement. 

Form  Ah.  349. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18.  .,  at 

tlie  plaintiffs,  uurler  the  firm  name  of  A.  B.  & 

('o.,  and  the  clefendants,  under  the  firm  name  of  C.  D.  &  Co., 
(entered  into  an  agreement  in  writing,  of  wliich  agreement  tlie 
following  is  a  copy  [copy  agreement  to  complete  unfinished  store, 
similar  to  adjoining  store]. 

.11.  That  after  the  making  of  said   agreement,  and    on    the 

day  of ,  18.  .,  the  (Icfi'ndnnts  (Iclivcrc'd, 

and  the  plaintiffs  took  possession  of  said  building,  under  and 
in  pursuance  of  said  agreement,  and  \ipon  the  faith  and  as- 
surance of  the  defendants,  and  the  f\ill  l)elief  thereof  that  Ihe 
said  premises  wer6  finished  in  the  same  manner  as  the  adjoin- 
ing store,  and  in  accordance  with  the  terms  of  said  O'^refMncnt. 

TTT.  Thai  Ihe  said  premises  were  not  finished  in  the  same 
manner  as  the  store  adjoining  at  the  time  of  makintr  such  agree- 
ment, hut,  on  the  contrary  [allege  specifically  the  difTcrencc]. 

11'^  T'ol.i.k  V.   Pioclic,  :'.r.  (':il.  -IKi:  !>r,   Am.   Dec   nr.. 

ii'i  KfclesiaHlifal  Coimiiis.^ioniTS  v.  Mcrral,  L.  R.,  4  Exch.  1G2. 

iHCalvrrt  v.  Bradley,  K!  How.  (V.  S.)  580. 


ijv<   i;;r2.  1313  forms  of  complaints.  71G 

1\'.   I  Alloge  special  damages],  to  the  daniagc  of  the  plaintiff 
dollars. 


[Demand  of  Judgment.] 

§  1312.  For  breach  of  covenant  of  quiet  enjoyment  against 
landlord. 

Form  No.  350. 

[Title.] 
The  plaintitT  complains,  and  alleges: 

I.  That  on  tlie   day  of   ,  18. .,  at 

,  the  defendant,  by  deed   [or  lease  under  seal], 

let  to  the  plaintiff,  and  the  plaintiff  rented  from  the  defendant, 

tlio  liouse  numhered , street, , 

for  the  term  of  three  years,  covenanting  that  the  plaintiff  should 
quietly  enjoy  possession  thereof  for  the  said  term. 

II.  That  on,  etc.,  one  A.  B.,  who  was  the  lawful  owner  of  the 
said  house,  lawfully  evicted  the  plaintiff  therefrom,  and  still 
withholds  the  possession  thereof  from  him. 

III.  That  the  plaintiff'  was  thereby  prevented  from  continuing 
the  business  of    [merchandising]    at  the  said   place,  and   was 

compelled  to  expend dollars  in  moving,  and  lost 

the  custom  of  C.  D.,  E.  F.,  and  G.  H.,  and  divers  other  persons, 
by  such  removal. 

[Demand  of  Judgment.] 

§  1313.  Covenant  defined.  The  breach  of  the  covenant  for 
quiet  enjoyment  is  an  actual  disturbance  of  possession  by  reason 
of  some  adverse  right  existing  at  the  time  of  the  making  the 
covenant;^^^  not  a  tortious  disturbance,  nor  a  lawful  disturbance 
by  an  adverse*  right  subsequently  acquired.^^^  Where  a  lease 
contains  an  express  covenant  for  quiet  enjoyment  "  without 
molestation  or  disturbance  of  or  from  the  lessor,  his  successor 
or  assigns,"  no  other  or  further  covenant  in  respect  to  enjoy- 
ment will  be  implied.^^'^  Under  the  Civil  Code  of  California  a 
covenant  for  quiet  enjoyment  against  all  persons  lawfully  claim- 
ing the  same,  is  implied  in  all  letting  for  hire.^^^ 

115  2  Oreenl.  Ev.  2^0. 

iicOreenby  v.  Wik-ox.  2  .Tohns.  1;  3  Am.  Dec.  .S70;  Grannis  v. 
Clark,  8  Cow.  36.  As  to  an  entry  by  tlie  landlord,  see  Sedgwick  v. 
Ilollenbar-k,  7  .Tohns.  376. 

317  Burr  T.  Stenton,  43  N.  Y.  462. 

118  Cal.  Civil  Code,  §  1927;  also,  Edwards  v.  Perkins,  7  Oreg.  149. 


717  COVENANTS.  §§    1314-1310 

§  1314.  Eviction.  Without  au  eviction  there  is  no  breach  of 
the  covenant  for  quiet  enjoyment;  but  it  is  not  necessary  that 
the  eviction  should  be  by  process  of  law,  consequent  on  a  judg- 
ment.^^^  The  covenant  is  broken  whenever  there  has  been  an 
involuntary  loss  of  possession  by  reason  of  the  hostile  assertion 
of  an  irresistible  paramount  title.^^^ 

§  1315.  Necessary  averments.  The  complaint  must  state  the 
particulars  as  to  the  person  or  persons  who  prevented  him  and 
by  what  right,  and  show  a  title  at  or  before  the  date  of  the  lease 
declared  on.^^ 

§  1316.  Responsibility  of  landlords.  Upon  a  covenant  in  a 
lease  for  quiet  enjoyment,  the  lessor  is  responsible  only  for  his 
own  acts  and  those  of  others  claiming  by  title  paramount  to  the 
lease. ^^^  In  such  a  covenant  no  set  formula  is  required.  Any 
language  which  expresses  the  intent  is  sufficient.^^ 

119  McGary  v.  Hastinprs,  39  Oal.  3G0. 

120  Id. 

121  Grannis  v.  Clark,  8  Cow.  36. 

122  Playter  v.  Cunningham,  21  Cal.  229. 

123  Levltzl^y  v.  Canning,  33  CaJ.  299. 


CHAPTER  IV. 

EMPLOYMENT. 

§    1317.   For  breach  of  contract  to  employ. 
form  No.  331. 
[Title.] 

The  plaintifl'  complains,  and  alleges: 

111.  That  on  the   day  of  ,  18. .,  at 

,  the  plaintiff  and  defendant  mutually  agreed  that 

the  plaintiff  should  serve  the  defendant  [an  accountant],  and 
that  the  defendant  should  employ  the  plaintiff  as  such  for  the 
term  of  [one  year,  or  as  the  case  may  be],  and  pay  him  for  his 
sei-vices dollars  monthly  [or  as  the  case  may  be]. 

II.  That  on  the day  of ,  18 .  . ,  the 

plaintiff  entered  upon  the  service  of  the  defendant  under  said 
agreement,  and  has  ever  since  been,  and  still  is,  ready  and  will- 
ing to  continue  in  such  service. 

III.  That  on  the day  of   ,  18 . . ,  the 

defendant  wrongfully  discharged  the  plaintiff,  and  refused  to 
permit  him  to  serve  as  aforesaid,  though  the  plaintiff  then  and 
there  offered  to  continue  in  said  service,  and  perform  said  agree- 
ment on  his  part,  to  the  damage  of  the  plaintiff 

dollars. 

[Demand  of  Judgment.] 

§  1318.  Discharge  of  employee.  Where  no  definite  period  of 
employment  is  agreed  upon  between  master  and  servant,  the 
master  has  a  right  to  discharge  the  servant  at  any  time,  and  to 
eject  him  by  force  if  he  refuses  to  leave  after  receiving  notice 
to  that  effect,  but  no  more  force  than  is  necessary.^  But  where 
a  contract  for  services  is  made  for  a  fixed  period,  if  the  em- 
ployer discharge  the  servant  without  good  cause,  the  servant 
may  recover  the  stipulated  wages.^ 

1  De  Briar  v.  Minturn.  1  Cal.  4.W;  see.  also,  Groenbury  v.  Early, 
2.3  X.  Y.  Supp.  1009. 

aWelistpr  v.  Wado.  ID  Cal.  201:  79  Am.  Dec.  21K;  La  Ooursier  v. 
Tlussell,  82  Wis.  2(55;  I.iddell  v.  Cliidester,  84  Ala.  .^>08;  .5  Am.  St.  Rep. 
387;  Cox  v.  Bearden.  84  Ga.  304;  20  Am.  St,  Rep.  359;  Markham  v. 


719  EMPLOYMENT.  §§    1319-1321 

§  1319.  Entire  contract.  A  distinction  exists  between  eon- 
tracts  for  specific  work  and  contracts  for  the  hire  of  clerks, 
agents,  laborers,  domestic  servants,  etc.,  for  a  specified  period. 
In  the  latter,  if  the  person  employed  is  improperly  dismissed 
before  the  term  of  service  has  expired,  he  is  entitled  to  recover 
for  the  whole  term,  unless  the  defendant  can  show,  by  way  oi 
defense,  that  the  plaintifi'  was  actually  engaged  in  other  profit- 
able service  during  the  term,  or  that  such  employment  was 
ottered  to  him  and  rejected.^  A  contract  to  grade  a  section  of 
a  railroad  is  an  entire  contract,  and  a  condition  in  it  for  pay- 
ments from  time  to  time,  as  the  work  progresses,  does  not  make 
it  severable.^  If  the  contractor,  in  such  case,  is  prevented  by 
his  employer  from  completing  his  whole  contract,  he  is  justified 
in  abandoning  it,  and  may  recover  a  fair  compensation  for  the 
work  performed."^ 

§  1320.  Measure  of  damages.  The  increase  of  damages  is 
not  the  entire  contract  })rice,  but  a  just  recompense  for  the 
actual  injury  which  the  party  has  sustained.'' 

§  1321.  Offer  to  perform.  Tlie  rejection  of  the  ofPer  to  per- 
form services  excuses  the  performance  as  a  condition  precedent 
but  does  not  release  the  plaintiff  from  the  obligation  to  perform 
so  long  as  he  insists  upon  the  agreement.'^  When  the  plaintiff 
has  been  WTongfuUy  discharged,  this  averment,  coupled  with 
an  allegation  of  readiness  to  serve,  is  all  that  is  necessary.     Ho 

Markham,  110  N.  O.  3.K5;  Mt.  Hope  Cem.  Assoc,  v.  Weidenniaiui, 
1.S9  111.  •'►7.  But  in  some  jurisdiction.s  the  proper  remedy  of  an  em- 
Itloyee  wronfrfnlly  discliarjred  is  nn  aotion  for  damages  caused  by 
the  wrongful  discliarjic  .Taiues  v.  Allen  Oounty,  44  Oliio  St.  22(i; 
58  Am.  Rep.  S21 ;  Weed  v.  Hnrf,  7  Daly.  2(!7;  78  N.  Y.  101;  Bennett 
V.  Roofing  Co.,  2'',  Mo.  -A pp.  .">87.  Under  the  new  procedure  in 
Mis.sissipi»l,  a  declaration  allegins  that  tlie  defendant  employed  the 
plaintiff  for  a  term  of  one  yc:ir.  at  si)ecifiod  weekly  wages,  and, 
dnrinc  the  year,  withoni  liis  f.ndt,  he  was  discharged,  and  that 
the  defendant  owes  liini  ii.  cerljiin  sum  ;is  wages  for  the  rest  of 
the  term,  sufficiently  stales  a  c;inse  of  .•id ion.  f ;iI)son-.Moore  Maini- 
faclnring  Ctt.  v.  Mec  k,  71   Miss.  r)14. 

aCostlgan  v.  Mohawk  \-  Hudson  Kivor  It.  R.  Co.,  2  Den,  GOO;  43 
Am.  Dec.  7.'8:  2  Creenl.  Ev..  p.  27:!;  S  2»;ia. 

4  Cox  V.  W.  P.  R.  R.  Co..  47  Cal.  87. 

Bid. 

eGlark  v.  M.'irslgliii.  1  I».ii.  :',17;  4,'}  Am.  Dec.  G70. 

7  Cooper  V.  Pena,  21  Cal.  403. 


§    1;}-^1  FORMS    OF    COMI'LAINTS.  7)^0 

iiord  not  aver  an  oWvv  to  t^cn'e.'*  For  if  auy  one  is  bound  to  do 
a  tiling,  ho  must  either  do  it  or  olt'er  to  do  it,  and  ii'  no  objec- 
tions are  made,  ho  must  show  that  he  made  a  tender  in  a  regu- 
Uir  manner;  but  tliis  is  not  necessary  if  the  other  party  by  hia 
conduct  dispenses  witli  a  tender,  as  by  a  previous  refusal  to 
accept.''  In  order  to  bring  a  case  witliiu  section  1998  of  the 
California  Civil  Code,  providing  for  the  continuance  of  the 
employment  for  a  reasonable  time  in  certain  cases,  the  complaint 
must  state  facts,  and  not  mere  conclusions.  It  is  not  sufficient 
to  allege  in  terms  that  tlie  continuance  of  the  employment  was 
necessary,  and  that  the  time  was  reasonable.^*'  A  complaint  alleg- 
ing that  the  defendant  is  indeljted  to  the  plaintilf  in  the  sum 
of  two  hundred  dollars  for  work  and  labor  performed  by  him 
for  the  defendant  during  the  year  1888,  at  defendant's  request, 
for  which  work  and  labor  i^aid  defendant  agreed  to  pay  the 
])laintift'  the  sum  of  two  hundred  dollars,  but  has  not  paid  said 
sum,  or  any  part  thereof,  is  held  to  state  a  sufficient  cause  of 
action,  although  subject  to  a  motion  to  make  more  definite  and 
certain. ^^  A  complaint  or  petition  averring  a  contract  of  em- 
ployment, the  rendering  of  services  and  expenditure  of  moneys 
in  its  performance,  the  plaintiff's  wrongful  discharge  by  the 
defendant  and  the  value  of  his  services  and  expenditures,  less 
receipts,  is  held  to  state  a  cause  of  action  on  a  quantum  meruit 
and  not  one  for  damages  for  breach  of  contract.^^  But  a  com- 
complaint  alleging  that  the  plaintiff  performed  certain  work 
for  the  defendant  under  a  contract  by  which  the  defendant 
agreed  to  pay  the  plaintiff  a  specified  sum  therefor,  and  that 
the  work  so  performed  was  reasonably  worth  such  sum,  states 
a  cause  of  action,  not  on  a  quantum  meruit,  but  on  a  contract 
to  pay  an  agreed  sum  for  the  work.  The  averment  of  value 
in  the  complaint  is  immaterial,  and  need  not  be  denied  by  the 
defendant. ^^ 

sWallis  V.  Wai-ren,  4  Exeh.  364;  7  Dowl.  &  L.  60. 

f>  Blight  v.  Ashley,  Pet.  C.  G.  15. 

lOWeithoff  V.  Murray,  76  Cal.  508. 

n  Busta  v.  Wardall,  3  S.  Dak.  141;  and  to  same  effect  see  Small 
V.  Poffenbarger,  ?,2  Nel>.  234;  Farron  v.  Sherwood.  17  N.  Y.  227; 
Cun-an  v.  Curran.  40  Ind.  473:  Tessier  v.  Reed.  17  Neb.  10.5. 

12  Glover  v.  Henderson,  120  Mo.  367:  41  Am.  St.  Rep.  695:  r-ompare 
Stokes  V.  Taylor,  104  N.  C.  394;  Puterbauj^h  v.  PiUerbauiih,  7  lud. 
App.  280. 

13  Meissner  v.  Rrennan.  15  N.  Y.  Supp.  671;  but  compare  American 
Enr-anstif  Tiling  Co.  v.  Reich,  11  N.  Y.  Supp.  776;  Goetz  v.  Van  Au, 
12  Civ,  Pro.  R.  104. 


721  EMPLOYMENT.  §§   1322-1325 

§  1322.  Rescission  of  contract.  If  the  servant  willfully  desert 
the  employer's  service,  the  employer  is  not  hound  to  receive 
him  again,  and  he  can  not  recover  for  past  services.^"*  Plaintiff 
agreed  to  work  seven  months  for  defendant,  at  ten  dollars  per 
month,  unless  one  or  the  other  should  become  dissatisfied.  He 
worked  six  months  and  a  half,  and  left,  alleging  that  he  had 
business  to  attend  to.  Held,  that  he  could  not  recover.^^ 

§    1323.   Tlie  same  —  where  the  employment  never  took  effect. 
Form  No.  352. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  [As  in  last  form.] 

II.  That  on  the day  of ,  18.  .,  at 

,  the  plaintiff  offered  to  enter  upon  the  service 

of  the  defendant,  and  has  ever  since  been  ready  and  willing 
so  to  do. 

III.  That  the  defendant  refused  to  permit  the  plaintiff  to 
enter  upon  such  services,  or  to  pay  him  for  his  services,  to  the 
damage  of  the  plaintiff dollars. 

[Demand  of  Judgment.] 

§    1324.   For  breach  of  contract  to  serve. 

Form  No.   353. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18 .  . ,  at 

,  the  plaintiff  and  defendant  mutually  agreed  that 

the  plaintiff  should  employ  the  defendant  at  [a  monthly]  com- 
pensation of  dollars,  and  that  the  defendant 

should  serve  the  plaintiff  [as  bookkeeper]  for  the  term  of  [one 
year] . 

IT.  That  fhc  plainfiff  has  always  been  ready  and  willing  to 

perform  liis  part  of  the  said  agreement  [and  on  the   

day  of  18.  .,  offered  so  to  do]. 

ITT.  That  the  defendant  refused  to  serve  the  plaintiff  as  afore- 

Baid,  to  his  damage dollars. 

[Demand  of  JuDnMENT.] 

§  1325.  Age  of  apprentice.  The  master  of  an  apprentice  is 
concluded  by  tlio  recital   in   the  indentures  of  the  age  of  the 

14  Faxon  v.  MansfifM.  2  Mass.  147:  Lantry  v.  Parks.  R  Tnw.  r,.*?. 
IB  Men  ell  V.  Burns.  4  I)pn.  121. 
YOL.  T— 01 


§^    K>'.H)-13'.i8  iUlJMS    OF    COMi'LAliNTb.  732 

boy."'  And  a  stranger  to  iho  indentures  can  not  take  advantage 
ol'  the  onnss^ion  to  insert  the  age  of  the  ai)prentiee  in  the  in- 
dentures.^" 

§  1326.  Assignment  of  indentures.  A  master  can  not  assign 
the  indentures  of  an  apprentice.^**  And,  therefore,  a  note  given 
for  such  an  assignment,  being  based  upon  a  void  contract,  can 
not  be  recovered.^" 

§  1327.  Apprentice's  wages.  The  master  is  entitled  to  his  ap- 
prentice's wages  wlien  hired  by  another,  wliether  tlie  person 
hiring  knew  or  not  that  he  was  an  apprentice. ^"^  The  right 
of  the  nuister  to  the  earnings  of  tlie  apprentice,  in  tlie  way  of 
his  business,  or  of  any  otlier  business  wliicli  is  substituted  for  it, 
does  not  extend  to  liis  extraordinary  earnings,  which  do  not  in- 
terfere with  the  profit  which  the  master  may  legitimately  derive 
from  his  services.*^ 

§    1328.   By  the  master,  against  the  father  of  apprentice. 

Form  No.  354. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day   of    ,   18 .  . ,   at 

,  one  A.  B.,  with  the  consent  of  the  defendant, 

made  an  indenture  under  his  hand  and  seal,  a  copy  of  which 
is  hereto  annexed. 

II.  That  at  the  same  time  and  place,  the  defendant  entered 
into  an  agreement,  under  his  hand  and  seal,  a  copy  of  which  is 
also  hereto  annexed  [or  state  the  tenor  of  these  covenants]. 

III.  That  on  the    day  of    ,  18.  ., 

the  said  A.  B.  willfully  absented  himself  from  the  service  of  the 

plaintiff,  and  continues  so  to  do,  to  his  damage  

dollars. 

[Demand  of  Judgment.] 
[Annex  copy  of  indenture.] 

ifi  McCutchin  v.  .Tamioson,  1  Cranch  C.  C.  348. 
17  Tlpineoke  v.  Rawlinps,  4  Cranch  C.  C.  r.99. 
IS  Handy  v.  Brown,  1  Cranch  C.  C.  010. 
w  Walker  v.  .Tohn.son,  2  Cranch  C.  C.  203. 

20  .Tamos  v.  Le  Roy,  0  .Tohns.  274;  Mnnspy  v.  Goodwin,  3  N.  H. 
272;  Conant  v.  Raymond.  2  Aik.  243. 

21  Mason  v.  The  "  Blaireau,"  2  Cranch,  240, 


733 


EMPLOYMENT.  §§    1329-1333 


§  1329,  Breach,  how  alleged.  The  allegation  tliat  the  defend- 
ant had  not  used  any  endeavors  to  have  the  apprentice  serve, 
and  refused  to  do  anything,  sufficiently  showed  a  breach.^^ 

§  1330.  Covenants.  The  usual  covenants  in  an  apprentice's 
indenture  are  independent,  and  the  plaintiff  need  not  aver  per- 
formance on  his  part.^^ 

§  1331.  Liability  of  parent.  That  the  father  of  an  appren- 
tice may  be  held  liable  upon  the  indenture,  by  reason  of  his 
signature  and  seal,  although  there  are  no  express  words  of  cove- 
nant binding  him.^  If  a  son  remains  with  and  performs  ser- 
vices for  his  father  after  attaining  his  majority,  the  law  will 
not,  ordinarily,  imply  a  promise  on  the  part  of  th«  father  to 
pay  for  his  labor;  but  if  the  circumstances  show  that  the  ex- 
pectation of  both  parties  was  that  he  should  be  compensated, 
the  promise  will  be  implied,  and  he  may  recover  a  quantum 
meruit.^ 

§    1332.   By  the  apprentice,  against  the  master. 

Form  No.  355. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of   ,  18..,  at 

,  the  defendant  entered  into  an  agreement  with 

the  plaintiff,  and  his  father,  Benjamin  Eider,  under  his  and  their 
hands  and  seals,  a  copy  of  which  is  hereto  annexed. 

II.  That  the  defendant  has  not  [instructed  the  plaintiff  in 

the  business  of   or  state  any  other  breach],  to 

his  damage dollars. 

[Demand  of  Judgment.] 

§  1333.  Right  of  action.  An  apprentice  may  sue  a  master  for 
not  teaching  him  his  trade,  although  no  indentures  were  exe- 
cuted, the  maf^ter  having  iaken  him  under  an  order  of  the 
court. ^ 

22  Van  Dom  v.  Younp:,  l.*^  Barb.  2R(\. 
anriiillips  V.  riift.  4  ITiirl.  &  Nor.  107. 
24  Woodrow  v.  rV)lfnian,  1  Cranrh  O.  C.  171. 
»  Friermiitl)  v.  Friormuth,  40  r^l.  42. 
M  Adan.3  v.  Miller,  1  Pranoh  O.  O.  5. 


§§    1334-1 3;^ti  FORMS    OF    COMPLAINTS.  724 

§   1334.    For  breach  of  contract  to  manufacture  goods. 

form   No.   356. 

[Title.] 
The  plaintiff  complains,  ami  alleges: 

I.  That  on  Uio   day  of   ,  18.  .,  at 

,  llu'  (Id'cndant  promised  and  agreed  witli  the 

plaintiff  to  nianut'aeturo  and  deliver  to  the  plaintiff'  four  hun- 
dred dozen  woolen  hose,  at  the  price  of dollars  for 

each  dozen,  for  which  the  plaintiff'  agreed  to  pay  the  defendant 
dollars. 

II.  That  the  plaintiff  duly  performed  all  the  conditions  of 
said  agreement  on  his  part. 

III.  The  defendant  did  manufacture  said  hose  under  said 
agreement,  but  manufactured  them  in  an  unskillful  and  unwork- 
manlike manner,  to  the  damage  of  the  plaintiff 

dollars. 

[Demand  of  Judgment.] 

§    1335.   For  refusing  to  accept  manufactured  goods. 

Form  No.  357. 

[Title.] 

I.  That  on  the   day  of   ,  18 .  . ,  at 

,  the  defendant  contracted  with  the  plaintiff  to 

make  for  him  [describe  what],  and  agreed  to  pay  for  the  same, 
upon  delivery  thereof, dollars. 

II.  That  the  plaintiff  made  the  said  goods,  and  on  the 

day  of ,  18.  .,  offered  to  deliver  the  same  to  the 

defendant,  and  has  ever  since  been  ready  and  willing  to  deliver 
them,  and  has  otherwise  duly  performed  all  the  conditions  of 
said  contract  on  his  part. 

III.  That  the  defendant  has  not  accepted  or  paid  for  the  same. 

[Demand  of  Judgment.] 
[Copy  of  contract.] 

§  1336.  On  a  promise  to  manufacture  raw  material  into 
merchantable  goods. 

Form  No.  358. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

T.  That  on  the   day  of   ,  18.  .,  at 

the  plaintiff  delivered  to  tlie  defendant 

[sides  of  leather],  of  the  value  of dollars,  to  be 

manufactured  into  [harness],  for  a  reasonable  compensation,  to 
be  paid  to  the  defendant  by  the  plaintiff. 


725  EMPLOYMENT.  §  1336 

II.  That  tlie  defendant,  in  consideration  thereof,  undertook 
to  manufacture  the  said  [harness],  or  cause  it  to  be  nianufac; 
tured  from  the  [leather],  and  to  deliver  the  same  to  the  plain- 
tiff when  so  manufactured. 

III.  That  the  said  [leather]  was  so  manufactured  into  [har- 
ness] by  the  defendant  before  the day  of , 

18.  .,  on  which  the  plaintiff  demanded  the  same  of  the  defend- 
ant, and  then  and  there  offered  to  pay  him  a  reasonable  com- 
pensation for  manufacturing  the  same. 

[Or,  III.  That  the  defendant  did  not  manufacture  said 
(leather)  into  (harness),  although  a  reasonable  time  therefor 
elapsed  before  this  action.] 

IV.  That  the  defendant,  then  and  ever  since,  refused  and 
neglected  to  delivei  the  same,  and  has  converted  them  to  his 
own  use. 

[Or,  IV.  That  the  defendant  manufactured  said  (leather)  in 
such  a  negligent  and  unskillful  mauner,  that  the  said  (harness) 
was  of  no  value.] 

[Demand  of  Judgment.] 

A  complaint  alleging  that  the  defendants  agreed  to  pay  the 
plaintiff  a  certain  sum  if  he  would  enter  their  service,  and  exert 
himself  in  putting  them  in  communication  with  the  manu- 
facturers of  certain  goods,  "  so  that "  they  might  procure  the 
agencies  for  such  goods,  but  without  alleging  that,  by  virtue  of 
such  exertions,  the  defendants  did  in  fact  procure  the  said 
agencies,  is  fatally  defective.  Nor  is  the  defect  cured  by  evi- 
dence that  the  plaintiff  was  merely  to  use  his  exertions,  as  this 
does  not  tend  to  proof  of  the  contract  alleged,  but  to  proof  of 
a  contract.^ 

27  Muller  v.  Schumann,  19  X.  Y.  Supp.  213. 


CHAPTER  V. 

INDEMNITY. 

I  1337.  By  retiring  partner,  on  the  remaining  partner'* 
promise  to  indemnify  him  against  damage. 

Form  No.  359. 

[Title.] 
The  plaintilt'  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18 .  .,   at 

,  the  plaintiff  and  defendant,  being  partners  in 

trade  nnder  tlie  firm  name  of  A.  &  B.,  dissolved  the  said  part- 
nership, and  mutually  agreed  that  the  defendant  should  take  and 
keep  all  the  partnership  property,  pay  all  debts  of  the  firm, 
and  indemnify  the  plaintiff  against  all  claims  that  might  be 
made  upon  him,  on  account  of  any  indebtedness  of  the  said 
firm. 

II.  That  the  plaintiff  duly  performed  all  the  conditions  of 
the  said  agreement  on  his  part. 

III.  That  on  the   day  of   ,  18 . .,  a 

judgment  was  recovered  against  the  plaintiff  and  defendant  by 

one  John  Doe,  in  the court  of  this  state,  upon  a 

debt  due  from  the  said  firm  to  the  said  Doe,  and  on  the 

day  of   ,   18 .  . ,  the  plaintiff  paid    

dollars  in  satisfaction  of  the  same. 

IV.  That  the  defendant  has  not  paid  the  same  to  the  plain- 
tiff, nor  any  part  thereof. 

[Demand  of  Judgment.] 

§  1338.  Definition.  Indemnity  is  a  contract  by  which  one 
engages  to  save  another  from  a  legal  consequence  of  the  conduct 
of  one  of  the  parties,  or  of  some  other  person.^ 

§  1339.  Essential  averments  —  damage  —  demand.  In  actions 
upon  an  ordinary  contract  to  indemnify  against  loss  or  damage, 

1  Cal.  Civil  Code,  §  2772.  An  aprro^ement  to  fnrnisli  a  bond  of  in- 
dfmnity  is  in  offort  an  agreement  to  indemnify,  nnd  may  bo  sned 
upon  as  snr-li.  if  the  lx)nd  be  not  furnished  as  ajireed.  And  a  r-nnse 
of  action  upon  an  ajn'eemont  to  indemnify  against  liability  arises 
when  the  liability  is  incurred.     Showers  v.  Wadswortli,  81  Cal.  270. 


727  INDEMNITY.  §    1340 

tlie  plaintiff  must  aver  actual  damage;  and  if  he  has  paid  under 
a  judgment  this  should  be  stated,  with  the  date  of  the  judg- 
ment, the  court  in  which  it  was  rendered,  and  the  amount  of 
the  judgment;  while  on  an  agreement  to  save  from  liability, 
actual  damage  need  not  be  averred;-  but  oonsequential  dam- 
ages must  be  specially  alleged.-^  Thus  in  an  action  on  a  bond  of 
indemnity,  the  plaintiff'  must  set  out  wherein  he  has  been  damni- 
fied. A  general  averment  of  loss  is  insufficient.^  But  where 
defendant  agreed  to  indemnify  the  plaintiff'  against  loss  on  a 
sale  of  stock,  on  demand,  an  action  for  the  deficiency  may  be 
maintained,  at  any  time  after  the  sale,  without  a  previous  de- 
mand.*^ So,  also,  in  an  action  on  a  bond  to  indemnify  the  plain- 
tiff against  damages  he  might  sustain  by  the  levy  of  an  attach- 
ment, the  plaintiff"  alleged  the  recovery  of  a  judgment  against 
plaintiff  for  damages  against  which  he  was  indemnified,  and  the 
payment  of  said  judgment.  The  averment  of  payment  was  ma- 
terial to  plaintiff's  right  to  recover  for  the  amount  of  such  judg- 
ment.°  The  averment  that  the  plaintiff  necessarily  incurred  ex- 
penses is  equivalent  to  the  allegation  that  he  incun-od  necessary 
expenses.'^  And  the  complaint  must  show  how  ami  in  what 
manner  these  neces^arv^  expenses  were  incurred,  naming  the 
count  in  the  allegation.^  But  the  failure  to  malce  mcli  an  aver- 
ment is  not  fatal;  it  is  at  most  but  an  irregularity.^ 

§  1340.  Attachment  —  release  from.  Recovery  may  be  had 
on  a  bond  given  to  a  sheriff,  to  release  property  from  attacliment, 
to  the  extent  of  the  penalty.^^     Such  bond  .is  not  a  statutory 

2McOe«  V.  Roen,  4  Abb.  Pr.  8. 

3  Swan'.s  PI.  .S81.  For  allegations  in  sur-li  actions,  .<?eo  Allare  v. 
Ouland,  2  .Tolins.  Cas.  r>2:  Holmes  v.  Wood,  10  Barb.  128. 

■*CA}e  V.  Rankin,  r,  Mfl.oan,  V,~A;  see,  also.  Barr  v.  Ward,  nc>  Neb. 
90.-);  BHckor  v.  Sfoiie.  47  .Mo.  App.  .I.W:  Davis  v.  Sinjlth.  79  Me.  351; 
Eldridire  v.  Crow,  7  \.  Y.  Miso.  K.  1.-)0. 

fi  Ilalleck  V.  Moss,  22  Cal.  2C>C,. 

«  Ronssin  v.  Stewart,  .3.?  Cal.  208. 

7  Glover  v.  Tiu-k.  1  Tlill.  CC. 

s  Patton  V.  Foote.  1  Wpik).  207.  Tlio  nllowanco  (if  (■miiisol  foos 
upon  an  indciniiity  bond  must  turn  upon  the  oovenanta  of  (lie  l)ond. 
If  tlio  bond  is  foiidiiioiie<l  to  pay  all  counsel  fco.s  inciu'rcd  in  ron- 
soquonoo  of  the  lejral  enforcement  of  the  ])ayniont  of  tlio  penalty 
of  the  IkhhI.  attfirney's  fees  expended  by  the  plaintilT  in  tlie  snit 
on  the  bond  may  lie  rer-ov.  rrd,  iiicliKb'nn  reasonable  attorney's  fees 
In  the  Sniin-me  f<mrl.     'rniiste.-id   v.   Xixdoif.  80  Cal.  047. 

»  Packard  v.  Tlill.  7  Tow.  4.'!4. 

10  Palmer  v.  Vance,  i.'i  Cal.  ."p.^. 


^'g    Iull-i;Vl;)  FOiniS    OF    COMI'LAIXTS.  728 

iindortaJving,  and  is  valid  at  foiiimoii  law.  J-lxecutiou  a;^ain,sL 
the  judginoiil  debtor  is  not  a  condition  ])ivccKlent  to  suit  on  the 
bond,  and  any  nnstako  in  the  recital  as  to  tlic  amount  I'or  which 
attachment  issued  may  be  exj)lained  luid  correctetl  l)y  parol.'* 
It  lakes  ell'ect  at  the  time  of  its  delivery.'-  Such  a  bond  is  for 
the  beuelit  of  the  plaintill"  who  may  sue  upon  it,  and  if  the 
sheriff  takes  a  sullicient  statu'tory  undeilaking,  he  has  no  further 
responsibility.'^  The  bond  given  to  release  property  attached, 
only  releases  it  from  the  custody  of  the  shehlf,  and  is  not  an 
actual  substitution  of  security,  compelling  the  jjlaintitf  to  pro- 
ceed upon  the  bond  alone  to  collect  his  payment.'*  An  indem- 
nity bond  to  the  sheriff  to  retain  property  seized  ujider  attach- 
ment, is  an  instrument  necessary  to  carry  the  power  to  sue  into 
effect.^" 

§  1341.  Administrator's  bond.  Where  an  administrator  malces 
premature  payment  of  a  claim,  and  takes  a  bond  of  indemnity, 
such  a  bond  wo-uld  be  held  legal  and  binding.^*' 

§  1342.  Execution,  seizure  under.  An  agreement  to  indem- 
nify a  sheriff  for  seizing  jsroperty  under  execution  is  valid,  if 
the  parties  are  in  good  faith  seeking  to  enforce  a  legal  right.^'^ 

§  1343.  Conditions  precedent.  If  the  obHgors  undertake  to 
indemnify  the  sheriff  for  any  damage  by  reason  of  any  costs, 
suits,  judgments,  and  executions  that  shall  come  or  be  brought 
against  him,  the  sheriff'  can  not  maintain  an  action  on  the  bond 
because  judgment  has  been  rendered  against  him,  but  must  first 
pay  the  judgment.^^  If  the  sheriff  is  indemnified  for  the  act 
alone,  and  suit  is  brought  against  him  and  judgment  recovered, 
the  sheriff  can  not  afterwards  have  judgment  on  the  indemnity 
bond  against  the  sureties  upon  five  days'  notice  unless  he  gave 
the  sureties  written  notice  of  the  action  brought  against  him.''^ 

11  Talmer  v.  Yaiwe,  1.3  Cal.  ^^r^S. 

12  Buffcndeau  v.  Brooks,  28  Oal.  CAl. 
1"?  Curiae  v.  Packard,  20  Cal.  194. 

14  Low  V.  Adams,  0  Cal.  277. 

15  Davidson  v.  Dallas.  S  Cal.  227. 
1*5  Comstock  V.  Breod,  12  Cal.  289. 
1"  Stark  V.  Bancy.  18  Cal.  622. 

iR  Tx>tt  V.  Mitfholl,  .'^2  Cal.  2P>. 

iSDonnis  v.  Packard,  28  Cal.  101;  see  Code  Civ.  Pro..  §  1055; 
Tunstead  v.  Xixdorf,  80  Cal.  647;  Oaks  v.  Scheifferly,  74  Id.  478. 


^^9  IXDEMXITY.  §§  1344,  1345 

§  1344.  Interpretation.  in  the  interpretation  of  a  contract 
of  indemnity  the  foiloAving  rules  are  to  be  applied,  unless  a 
contrary  intention  appears:  1.  Upon  an  indemnity  against  lia- 
bility expressly,  or  in  other  equivalent  terms,  the  person  in- 
demuLfied  is  entitled  to  recover  upon  becoming  liable;  2.  Upon 
an  indemnity  against  claims,  or  demands,  or  damages,  or  costs, 
expressly,  or  in  other  equivalent  terms,  the  person  indemnified 
is  not  entitled  to  recover  without  payment  thereof;  3.  An  in- 
demnity against  claims  or  demands,  or  liability,  expressly,  or  in 
other  equivalent  terms,  embraces  the  costs  of  defense  against 
such  claims,  demands,  or  liability  incurred  in  good  faith,  and 
in  the  exercise  of  a  reasonable  discretion;  4.  The  person  in- 
demnifying is  bound,  on  request  of  the  person  indemnified,  to 
defend  actions  or  proceedings  brought  against  the  latter  in 
respect  to  the  matters  embraced  by  the  indemnity,  but  the  per- 
son indemnified  has  the  right  to  conduct  such  defense  if  he 
chooses  to  do  so;  5.  If,  after  request,  the  person  indemnifying 
neglects  to  defend  the  person  indemnified,  a  recovery  against 
the  latter,  suffered  by  him  in  good  faith,  is  conclusive  in  his 
favor  against  the  former;  6.  If  the  person  indemnifying,  whether 
he  is  a  principal  or  surety  in  the  agreement,  has  not  reasonable 
notice  of  the  action  or  proceeding  against  the  person  indemni- 
fied, or  is  not  allowed  to  control  its  defense,  judgment  against 
the  latter  is  only  presumptive  evidence  against  the  former;  7. 
A  stipulation  that  a  judgment  against  the  person  indemnified 
shall  be  conclusive  upon  the  person  indemnifying,  is  inap- 
plicable, if  he  had  a  good  defense  upon  the  merits,  which  by 
want  of  ordinary  care  he  failed  to  establisli  in  tlie  action. -"^  An 
indemnity  against  the  acts  of  a  certain  person  applies  also  to 
those  of  his  agent. ^^ 

§  1345.  Injunction.  A  l)()nd  nf  indemnity,  oxocutod  in  pur- 
suance of  articles  of  agreement,  may  in  equity  bo  restrained  so 
ns  to  conform  to  those  articles.  But  a  departure  from  the  ar- 
ticles must  be  clearly  shown."  Thus,  under  an  agroomont  to  in- 
demnify a  retiring  partner  asiainsi  ilcmnnd  upon  tbe  concern, 
and  a  bond  of  indemnify  rcciling  llial   i(  was  agreed  In  indcm- 

s'^Cal.  Pivil  rode,  §  277S. 

21  Id.,  8  2n^>.  See,  also,  as  to  rontnu-fs  of  iiidoinnity  ami  nil(>n 
In  rpferonoo  tliereto.  Tlieobald's  Prinfipal  ^  Rurofy:  rtn'tty,  .Jr.. 
Tnnt.  f.^»tli  .Am.  ed.t  r,(',:  Stniio  v.  TIor)kor.  n  Tow.  1.'4:  Whitnkor  v. 
Smith,  4  Pick.  S.".:  Pharc.  .Xdm'r.  etc.  v.  Illnman,  8  Wend.  452, 

22Flnley  v.  Lynn.  G  Cranoh,  238. 

92 


^1^  UM(;-134S  roiois  of  complaints.  730 

nil'}-  apiiii>t  tlrbts,  iiu-liuliiii;-  those  duo  U-oui  others  which  liail 
bcrii  asMiuK'il,  it  was  hold  t.liat   the  bond  iniglil  he  enforced."' 

§  1346.  Joint  and  several  liability.  One  who  indemnifies 
another  against  an  act  to  be  done  by  the  latter,  is  liable  jointly 
with  the  pei-son  indeninilied,  and  separately  to  every  person 

injured  by  such  act.-'* 

§  1347.  Liability  of  sureties.  Where  the  sheriff,  under  a 
writ  of  attachment,  is  about  to  levy  upon  the  property  of  a  firm, 
and  a  bond  is  executed  by  third  parties  as  sureties,  conditioned 
to  keep  hai'mless  and  indcuiniry  the  sberitr  against  all  damages 
and  expense  he  may  be  put  to  by  reason  of  the  nonseizure  of 
the  property,  and  "  to  pay  whatever  judgment  may  be  rendered 
against  sajd  defendants;"  and  judgment  was  obtained  against 
one  only  of  the  defendants  —  plaintiffs  failing  on  the  trial  to 
prove  the  other  to  be  a  partner  —  the  sureties  are  liahle  on  the 
bond  for  the  amount  of  the  judgment;  tluit  the  bond,  though 
not  strictly  an  undertaking  under  the  statute,  conforms  sub- 
stantially to  its  requirements,  and  must  be  read  by  the  light  of 
the  statute,  and  interpreted  according  to  the  intention  of  the 
parties.2-'^  c^^^^h.  bond  will  be  presumed  to  have  been  executed 
with  reference  to  the  provisions  of  the  statute;  and  will  be  held 
such  a  security,  and  the  fact  that  judgment  was  obtained  against 
one  only  of  the  defendants,  satisfies  the  condition  to  "  pay  what- 
ever judgment  may  be  rendered  against  said  defendants."^ 

§  1348.  Liability,  discharge  from.  Whenever  the  liability 
of  the  sureties  is  fixed  l)y  the  rendition  of  a  judgment  in  favor 
of  the  plaintiff,  the  sureties  have  a  right  to  tender  the  plaintiff 
the  full  amount  of  the  judgment,  and  if  he  refnses  to  receive 
the  same,  the  sureties  are  discharged  from  their  obligation 
on  the  undertaking.^'^  Such  tender  is  equivalent  to  payment  or 
release  by  said  plaintiff.  The  sureties  are  likewise  discharged 
where  the  principal  tenders  to  the  plaintiff  the  full  amount  of 
his  deht  and  costs,  and  the  plaintiff  refuses  to  receive  the 
tender.^ 

2.T  Finloy  v.  T.ynn,  0  Crnnrh,  2.1S. 
24  Tal.  Civil  Coflo,  §  2777. 
2.'-.  iTeynemann  v.  Eder.  17  Cal.  433. 
2«  Id. 

27  ITayps  V.  .Tosophi,  20  Cal.  .'3.5. 

28  Curiae  v.  Packard,  29  Cal.  194. 


731  INDEMNITY.  §§    1349-135^ 

§  1349.  Notice  to  sureties.  H'  an  action  be  brought  against 
a  shcrilf  lor  an  act  done  by  virtue  of  his  office,  and  lie  give 
written  notice  thereof  to  tlie  sureties  on  his  bond  of  indemnity 
received  by  him,  the  judgment  recovered  tlierein  shall  be  con- 
clusive evidence  of  his  right  to  recover  against  such  sureties; 
and  the  court  or  judge  in  vacation  may,  on  motion,  upon  notice 
of  five  days,  order  judgment  to  be  entered  up  against  them  for 
the  amount  so  recovered,  including  costs.^^  The  provision  of 
the  Practice  Act  is  founded  upon  the  principle  that  the  action, 
imder  such  circumstances,  is  in  substance  against  the  indemni- 
fier,  the  real  party  in  interest,  and  that  he  has  in  that  action  an 
opportunity  to  make  any  defense  that  may  exist.^"  Where, 
therefore,  the  indemnifier  has  been  so  notified,  he  can  not  main- 
tain a  bill  in  equity  to  set  aside  the  judgment  obtained  therein, 
except  under  such  conditions  as  wotild  have  enabled  him  to 
maintain  it,  had  he  been  the  nominal  as  well  as  real  party  de- 
fendant to  the  first  action.-''^ 

§  1350.  Remedy.  AVhen  an  indemnity  bond  is  given  to  a 
sheriff  to  hold  him  harmless,  his  remedy  at  law  on  the  bond  is 
clear  for  the  amount  of  any  such  judgment,  whether  he  :)e  sol- 
vent or  not,  or  whether  his  official  sureties  could  be  held  or  not.'^^ 

§  1351.  Sale  under  execution.  A  bond  given  to  a  sheriff  to 
indemnify  him  for  any  loss  or  damage  he  may  sustain  by  selling 
property  levied  on  by  him,  by  virtue  of  an  execution,  in  vio- 
lation of  an  order  enjoining  its  sale,  is  void,  because  an  un- 
lawful contract. ^^ 

§  1352.  Trespass.  An  agreement  to  indemnify  a  party  for 
a  willful  trespass  about  to  be  committed,  is  void,  as  against  pub- 
lic policy.^^ 

5  1353.  Void  contract.  An  agroomont  to  in'lomuifv  a  per- 
son against  an  act  thorenfter  to  be  done,  is  void,  if  ilu"'  art  be 
known  by  such  periann.  nt  the  time  of  doing  it.  to  be  unlawful.^-'' 
r»ut  an  agreoment  to  indemnify  against  an  aci  already  done,  is 

snral.  rnt^(^  r]v,  Wo..  S  in.-r.;  p..p  Tnnstpnd  V.  Xixilorf.  SO  Pal.  047. 

^"Dnfil  V.   rnrhf'fn.  21   Tnl.    I.TS;  S2  Am.   Dof.  74f). 

31  Id. 

''swiiitp  V.  Fratt.  1?,  Pnl.  .'21. 

•''^  T'.iiffcndonn  r.  Rrnoks.  2R  Cal.  041. 

•"'<  Stark  V.  Ranoy,  IS  ral.  022. 

85  Civil  Code.  8  277.?. 


§    1354  I'OIOIS    OF    COMrLAlNTS.  732 

valitl,  oven  though  the  iwl  was  kuuwn  to  be  wrongful,  unless  it 
Avas  a.  folony.^'* 

§   1354.   Against    sureties    in    partner's    bond    of    indemnity 
against  liability. 

Form  No.  360. 

The  plaint itf  complains,  and  alleges: 

L  That  on  the   day  of   ,  18. .,  the 

plaint  ill'  and  one  A.  \\.  were  copartners  in  husiness  as  merchants, 

in  the  city  of  ,  nntler  the  tirni  name  of  A.  13.  & 

Co.,  and  thereafter  on  the  same  day  they  dissolved  their  con- 
nection as  such  copartners,  and  thereupon  entered  into  an  agree- 
ment in  writing,  of  said  date,  duly  executed  and  signed  by  them 
respectively,  whereby  it  was,  among  other  things,  mutually 
agreed  that  the  said  A.  E.  should  retain  and  keep  to  his  sole  and 
separate  use  all  and  singular  the  partnership  ])i-oi)erty  of  every 
name  and  character  whether  in  action  or  possession,  and  where- 
soever situated;  and  in  consideration  thereof,  that  he  should 
pay  and  discharge  the  dehts  so  due  by  the  said  firm,  to  the  ex- 
tent of dollars,  from  his  own  individual  resources, 

and  to  the  like  extent  hold  the  plaintiff  harmless  and  indemni- 
fied, of  and  from  and  by  reason  of  any  and  all  claims  or  liabilities 
due  by  said  firm,  a  copy  of  which  agreement  is  hereto  annexed 
as  a  part  of  this  complaint,  marked  "  Exhibit  A." 

II.  That  the  defendants,  in  consideration  of  said  agreement 
between  said  A.  B.  and  the  plaintiff,  and  of  one  dollar  to  each 
of  them  then  paid  by  the  plaintiff,  entered  into  an  agreement 
executed  and  signed  by  them  respectively,  a  copy  whereof  is 
annexed  hereto  as  a  part  of  this  complaint,  and  marked  "  Ex- 
hibit B,"  whereby  they  severally  undertook  and  bound  them- 
selves to  the  plaintiff,  for  the  faithful  performance  by  the  said 
A.  B.  of  the  covenants  in  said  agreement,  to  be  kept  and  per- 
formed on  said  A.  B.'s  part. 

TIT.  That  said  A.  B.,  under  his  said  agreement  with  the  plain- 
tiff, retained  and  kept  to  his  sole  and  separate  use  all  the  part- 
nership property  of  the  firm;  but  has  not,  pursuant  thereto,  paid 
and  discharged  the  delits  due  by  said  firm  to  the  extent  afore- 
said: and  has  failed  to  bold  this  plaintiff  harmless  and  indemni- 
fied (m  llio  like  extoTif.  of  and  froTu  and  by  reason  of  any  claims 
or  liabilities  due  by  tlio  said  firm. 

36  Civil  Code,  §  2774. 


;33  INDEMNITY.  §§  1355,    135(> 

IV.  That  at  the  time  of  the  dissolution  of  the  partnership, 
and  of  the  making  of  the  agreement  aforesaid,  the  said  firm  was 

indebted  to  the  firm  of  R.  &  Co.,  of ,  for  merchandise 

sold  and  dehvered,  in  the  sum  of doliai-s,  wliicli 

was  then  due  and  payable;  which  indebtedness  formed  u  part 
of  the dollars,  debts  of  A.  B.  &  Co.,  and  was  in- 
cluded among  such  debts,  to  be  paid  by  the  said  A.  B.,  under 
his  agreement  aforesaid  with  the  plaintiff;  but  the  said  A.  B., 
although  requested,  would  not  pay  11.  &  Co.  their  said  demand 
or  any  part  thereof. 

Y.  That  on  the day  of last,  an  ac- 
tion was  commenced  by  the  plaintiff  in  the  [state  the  court],  to 
recover  upon  and  by  virtue  of  the  aforesaid  agreement,  from 
the  said  A.  B.,  the  said  amount,  with  interest,  then  due  by  the 
said  A.  B.  &  Co.  to  the  said  firm  of  R.  &  Co.,  amounting  to 
dollars,  and  interest  thereon;  and  sucli  proceed- 
ings were  thereupon  had  that  on  the day  of , 

18..,  judgment  was  rendered  in  such  action  in  favor  of  the 

plaintiff  against  the  said  A.  B.  for  the  sum  of  

dollars,  including  costs;  upon  which  judgment  execution  was 
at  once  issued  against  the  said  A.  B.  and  returned  wholly  un- 
satisfied. 

VI.  That  the  plaintiff  has  paid   dollars,  the 

amount  of  said  judgment,  and  other  necessary  costs,  disburse- 
ments, and  attorney's  fees  therein,  amounting  to 

dollars. 

VII.  That  he  has  demanded  from  the  defendants  payment  of 
the  said  amounts,  but  they  have  not  paid  the  same. 

[Demand  of  Judgment.] 
[Annex  copies  of  agreements  marked  Exhibits  "A"  and  "  B."] 

§  1355.  Notice  of  debt.  That  tlie  defendants  had  notice 
of  the  debt  need  not  be  alleged,  as  it  is  matter  which  lies  prop- 
erly in  the  knowledge  of  the  defendant,  especially  if  it  is  averred 
that  the  bof)ks  and  papers  of  the  firm  were  transfeiTed  to  the 
dofendnnts.^'^ 

§  1356.  Partnership  Indemnity.  Where  a  partner,  in  retir- 
ing, covenants  to  indemnify  his  successors  against  all  liabilities 
connectod  with  the  bnsincps  in  which  the  parties  had  before  been 
engaged,  the  covenant  did  not  apply  to  the  liabilities  incurred 

87  Clough  V.  Hoffman,  5  Wend.  499. 


$^  1357, 1358  FOiois  or  complaints.  734 

by  the  plaint  ill"  wliilo  \w  carried  ou  the  business  oa  his  owa 
aceount.^^ 

g  1357.  Smety  against;  principal,  for  indemnity  against  lia- 
bility as  surety. 

Form  No.  361. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day   of    ,   18 . .,  at 

,  in  consideration  that  the  plaintiff  would  become 

surety  for  him,  by  executing  an  undertaking,  of  which  a  copy  is 
annexed  as  a  part  of  this  complaint,  marked  "  Exhibit  A," 
agreed  with  the  plaintiff  that  he  would  indemnify  him,  and 
save  him  harmless  from  and  against  all  damages,  costs,  and 
charges  which  he  might  sustain  by  reason  of  his  becoming 
surety  as  aforesaid. 

II.  That  the  plaintiff,  confiding  in  such  promise  of  the  de- 
fendant, executed  and  delivered  such  undertaking. 

III.  That  the  defendant  did  not  indemnify  the  plaintiff,  and 
save  him  harmless  from  such  damages,  costs  and  charges;  but, 

on  the  contrary,  the  plaintiff,  under  a  judgment,  on  the 

day  of ,  18 .  . ,  rendered  against  him  by  the 

court,  at ,  in  an  action  brought  against  him  upon 

said  undertaking,  paid,  on  the ,.  .  day  of , 

dollars  to ,  in  satisfaction  and  dis- 
charge of  said  undertaking,  and  also  necessary  costs  and  ex- 
penses in  said  action  and  on  account  of  said  undertaking,  to  the 
amount  of dollars. 

IV.  That  notice  thereof  was  given  to  the  defendant,  and  that 
the  plaintiff  duly  performed  all  the  conditions  of  the  said  agree- 
ment on  his  part. 

V.  That  the  defendant  has  not  paid  the  same  to  the  plaintiff. 

[Demand  of  Judgment.] 
[Annex  copy  of  undertaking,  marked  "  Exhibit  A."] 

§  1358.  Right  of  surety.  Where  Jones,  for  the  accommo- 
dation of  Smith,  indorses  a  note  to  Stiles,  and  Smith  delivers 
an  article  of  property  to  Jones  to  indemnify  him  against  his 
liability  on  the  indorsement,  Stiles  can  in  equity  avail  himself 
of  the  security  for  the  satisfaction  of  the  note.  Jones  merely 
seeks  to  indemnify  himself;  he  is  not  to  make  profit  out  of  the 
indorsement.     He  is  personally  liable  to  pay  the  whole  debt, 

38  Haskell  v.  Mcore,  29  Cal.  437. 


735  INDEMNITY.  §§  1359,  1360 

whether  he  receives  anything  from  the  principal  or  not,  and  it 
is  his  duty  to  pay  it;  and  as  Jones  holds  property  in  his  hands, 
belonging  to  his  principal,  expressly  for  his  indemnity,  if  it  is 
applied  to  the  payment  of  the  debt,  both  the  duty  of  himself 
and  his  principal  is  discharged,  and  the  indemnity  at  the  same 
time  satisfied.^^ 

§  1359.  When  indemnitor  a  surety.  Where  one,  at  the  re- 
quest of  another,  engages  to  answer  in  damages,  whether  liqui- 
dated or  unliquidated,  for  any  violation  of  duty  on  the  part 
of  the  latter,  he  is  entitled  to  be  reimbursed  in  the  same  man- 
ner as  a  surety,  for  whatever  he  may  pay.^'^ 

§    1360.   Subtenant  against  his  immediate  lessor. 
Form  No.  362. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  times  hereinafter  mentioned,  the  defeitdant 
held  certain  premises  [describe  them],  as  tenant  thereof  to  one 

A.  B.,  at  a  monthly  rent  of  dollars,  payable  by 

the  defendant  to  said  A.  B.  on  the  [state  time  of  payment]. 

II.  That  on  the    day  of    ,   18.  .,  in 

consideration  that  the  plaintiff  then  became  the  tenant  to  the 

defendant  of  said  premises,  at  a  monthly  rent  of 

dollars,  payable  to  him  by  the  plaintiff,  the  defendant  gave  to 
the  plaintiff  an  agreement  to  indemnify  him,  of  which  the  fol- 
lowing is  a  copy  [copy  agreement]. 

Til.  That  the  defendant,  contrary  to  his  agreement,  failed 

to  pay  the  rent  for  the  month  of   ,  which  was 

during  the  tenancy  of  the  plaintiff  under  said  agreement. 

39  Van  Ordon  v.  Dunham,  ^r,  Ca.].  145.  As  to  the  right  to  recover 
costs  paid  and  incurred  by  the  surety,  see  Chit.,  .Tr.,  Cent.  (5th  Am. 
ed.)  504;  Davenport  v.  Ferris,  6  .Tohns.  131;  Bell  v.  Morrison,  1  Pet. 
.^.50;  Hamilton  v.  Schofleld,  17  Enp:.  Com.  L.  457:  .Tones  v.  Brooke, 
4  Tatint.  4G4;  Straoy  v.  Banl<  of  Engliind.  in  Enjr.  Com.  Ti.  .'^.'^S; 
IIul)bly  V.  Brown.  ir,  .Tolins.  70;  Fulton  Ranlc  v.  Stafford,  2  Wend. 
484;  Everinfjliani  v.  Laiijrton,  2  McCord,  1.59.  Tlie  elaiiu  f)f  a  surety 
to  eompel  his  prinr-ii^al  to  dis<^'liarge  llie  lial)ility.  altliouirli  the 
surety  has  not  yet  aftnally  jt.Tid  anytliinp,  is  available  under  rode 
proeednre  as  an  eriuitable  defense  to  an  artion  by  the  prin(ii)al  or 
one  standing  in  liis  shoes  on  an  independent  cause  of  action,  on 
wliifii  tlie  surety  is  indebted  to  the  principal.  Mack  v.  Kitsell,  20 
Abl>.  \.  O.  2f)3. 

40  Oal.  Civil  Code,  §  2779. 


§§    13G1-1303  FORMS   OF   COMrLAINTS.  736 

IV.  Tliat  liy  ivason  thereof,  said  A.  !>.,  on  the day 

of ,  18.  .,  in  the court,  commenced 

proceedings  to  recover  possession  of  said  premises,  which  were 
then  occupied  by  the  phiintiH*  under  said  agreement,  for  the 
nonpayment   of  said  rent;   and   thereby   tlie   piaintilt",   on   tlie 

day  of   ,   18 .  . ,  at    ,   was 

compelled  to  pay  to  said  A.  B.,  to  the  use  of  the  defendant,  the 

sum  of dollars,  the  amount  of  said  rent,  together 

with dollars,  the  costs,  disbursements,  and  attor- 
ney's fees  therein. 

V.  That  he  has  demanded  from  the  defendant  payment  of  the 
said  amounts,  but  he  has  not  paid  the  same. 

[Demand  of  Judgment.] 

§   1361.   Consequential  damages.      To    recover    consequential 
damages  or  costs,  tlie  averment  must  be  special. 

§  1362.  Eviction  by  wrongdoer.    If  a  tenant  is  evicted  by  a 
wrongdoer,  the  landlord  is  not  bound  to  indemnify  him.*i 

§    1363.   On  agreement  of  indemnity  to  plaintiff  for  defending 
action  for  surrender  of  property. 

Form  No.  363. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  or  about  the day  of ,  18 .  ,, 

one  A.  B.  deposited  with  the  plaintiff dollars. 

II.  That  afterwards,  on  the day  of , 

18.  .,  the  plaintiff,  at  the  request  of  the  defendant,  delivered 
to  him  the  said  sum  of  money  so  deposited  by  A.  B.,  which 
money  the  defendant  claimed;  and  that  the  plaintiff  did  not 
know  to  whom  the  same  belonged. 

III.  That  afterwards,  on  the  said day  of , 

18.  .,  iha  plaintiff,  at  the  request  of  the  defendant,  agreed  with 
the  defendant  that  ho  would  defend  any  action  which  the  said 
A.  B.  should  commence  against  him  for  the  said  money:  and 
the  defendant,  in  consideration  of  the  premises,  then  promised 
the  plaintiff  to  indemnify  and  save  him  harmless  from  the  con- 
pequencpR  of  such  an  action. 

lA^.  That  the  said  A.  B.,  on  the day  of , 

18.  .,  commenced  an  action  against  the  plaintiff  in  the  [state  the 
court],  for  the  recovery  of  the  said  sum  of  money,  of  which  the 
defendant   then  had   notice. 

«  Schilling  v.  Holmes,  23  Cal.  227. 


737  INDEMNITY.  §    1364 

V.  That  the  plaintiff,  with  the  privit}'  of  the  defendant,  and 
to  the  best  of  his  ability,  defended  the  said  action;  but  tlie  said 

A.  B.,  on  the day  of ,  18.  ,,  at  a  General 

Term  of  said  court,  recovered  a  judgment  against  the  plaintifl:  in 
said  action,  to  the  amount  of dollars;  and,  after- 
wards, an  execution  w^as  issued,  upon  the  said  judgment,  against 

the  property  of  the  plaintiff,  who,  on  the day  of 

,  18.  .,  paid  the  said  sum  of dol- 
lars, and  also  the  sum  of dollars,  for  officers'  fees, 

and  other  expenses  upon  the  said  writ.  And  the  plaintiff  w^as 
also,  by  means  of  the  premises,  compelled  to  pay  other  charges 
and  expenses,  for  costs  and   disbursements  and  counsel   fees, 

amounting  to  the  sum  of dollars,  in  defending  the 

said  action. 

VI.  That  the  defendant  has  not  paid  the  same  to  the  plaintiff. 

[Demand  of  Judgment.] 

§  1364.  Voluntary  payment.  Under  a  bond  conditioned  to 
indemnify  the  obligee  against  being  compelled  by  law  to  pay  a 
second  time  a  sum  claimed  and  paid  to  the  obligor,  if  the  obligee 
is  subsequently  sued  by  two  other  persons  separately  claiming 
the  same  sum,  and  interpleads  such  plaintiffs  by  suit  in  chan- 
cery, and  by  leave  obtained  pays  the  money  into  court,  this  is 
not  a  breach  of  the  bond,  for  it  is  a  voluntary  payment.'** 

*a  Massey  v.  Schott.  Pet.  C.  C.  122. 
Vol.  1—93 


CHAPTER  VI. 

PKOMISE  OF  MAKiilAGE. 

f   1365.   Tor  refusal  to  marry. 

form  No.   364. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  heretofore,  to-wit,  on  the day  of , 

18. .,  at ,  iu  consideration  that  the  plaintiff,  being  then 

sole  and  unmarried,  at  the  request  of  the  said  defendant,  had 
then  promised  the  said  defendant  to  marry  him,  the  said  defend- 
ant, on  request,  the  defendant  promised  to  marry  the  plaintiff 
within  a  reasonable  time  [or  if  a  time  certain  was  agreed  upo)i. 
state  the  time]. 

II.  That  the  plaintiff,  confiding  in  said  promise,  has  always 
since  remained  and  continued,  and  still  is,  sole  and  unmarried, 
and  has  been  for  and  during  the  time  aforesaid,  and  now  is, 
ready  and  willing  to  marry  the  defendant. 

III.  That  the  defendant  refuses  to  marry  the  plaintiff,  al- 
though a  reasonable  time  elapsed  before  this  action  [or  although 

she,  on  the day  of ,  18  •  •  ?  requested  him 

so  to  do]  to  her  damage  in  the  sum  of dollars. 

[Demand  of  Judgment.] 

§  1866.  When  action  lies  —  necessary  averments.  Marriage  is 
a  consideration  as  valuable  as  money,  if  bona  Me}  And  the 
action  on  the  promise  to  marry  is  sustainable  only  when  the 
contract  is  mutual .^  And  though  one  of  the  parties  be  an  in- 
fant, the  contract  is  binding  on  the  other.^  But  an  executor 
can  not  sue.^     A  man  may  maintain  an  action  for  breach  of 

1  MagTiiac  v.  Thompson,  1  Baldw.  344. 

2  1  Roll.  Abr.  2215;  Wells  v.  Padgett,  8  Barb.  323;  Adanis  v.  Byerly, 
12.3  Ind.  .368. 

3  Holt  V.  Clareufionx,  2  Stra.  a^.T;  Bao.  Abr.,  Infant;  Willard  v. 
Stone,  7  Cow.  22;  17  Xm.  Dec.  400:  see  I.eiolitAveiss  v.  Treskow,  21 
Hun,  487;  Frost  v.  Voucrht,  37  Miob.  HF.. 

4  Chamberlain.  Adm'r.  etc.  v.  Williamson.  2  M.  fk  S.  408.  Nor 
■will  an  action  lio  aerainst  the  personal  rcprospntatire  of  the 
promisor.    Grubb  v.  Suit,  .32  Oratt.  203:  34  /  ai.  Rep.  765. 


J 


739  PEOMISE   OF  MAKKIAGE,  §§    13G7,   1368 

promise  to  marr}\^  But  an.  action  for  breach  of  promise  of 
marriage  will  not  be  made  to  survive  by  proof  that  the  promisee 
had  a  child,  born  out  of  wedlock,  now  living,  and  that  the  de- 
fendant is  the  father  of  said  child.**  Deceit  and  injury  are 
presumed  from  the  breach,  and  need  not  be  alleged^  Where  the 
promise  is  special,  as  "  after  the  death  of  the  defendant's  father," 
it  should  be  so  declared  on,  with  proper  averments.^  But  it 
is  not  necessary  that  the  time  of  marriage  should  be  specified.^ 
But  if  the  promise  was  to  marr}'^  on  a  particular  day,  it  should 
be  so  stated.  ^'^ 

§  1367.  Evidence  of  promise.  Positive  proof  of  request  and 
refusal  is  never  required;  but  they  may  be  inferred  from  circum- 
stances, and  the  request  may  be  made  by  the  father  or  other 
friend,  whose  authority  may  be  inferred  from  existing  relations.^^ 
The  plaintiff  must,  however,  aver  a  special  request  or  an  offer 
to  perform.  A  bare  allegation  of  readiness  and  willingness 
is  not  sufficient. ^2  j^  ^n  action  for  breach  of  promise  of  mar- 
riage, the  declaration  of  the  defendant  that  he  would  make  a 
good  home  for  the  plaintiff,  made  at  the  time,  and  as  part  of 
his  conversations  with  the  plaintiff,  which  are  declared  on  as 
establishing  the  promise  of  marriage,  are  admissible  in  connec- 
tion with  the  other  conversations,  as  tending  to  prove  the 
contract. ^^ 

§  1368.  Promise,  when  void.  An  agreement  by  a  man  to 
marry  when  a  divorce  should  be  decreed  between  himself  and 
his  wife  in  a  suit  then  pending,  is  contrary  to  public  policy,  and 

0  Harrison  v.  Case.  1  Ld.  Raym.  386. 

8  Hovey  v.  Page,  ;")  Mo.  142. 

^  Leopold  v.  Popitonheimer,  3  Code  R.  39. 

8  2  Peake.  103;  2  Chit,  on  Cont.  (11th  Am.  ed.)  791. 

»  Carth.  4B7. 

10  Hoppe  V.  Rymonds.  2  Chit.  324;  see  Phillips  v.  Cnitehley,  7  id. 
409;  The  Klnj?  v.  Woolf.  1  M.  &  P.  239.  A  positive  refusal  to 
nifirr.v  Is  such  a  broach  of  tho  contract  as  will  sustain  an  action 
although  made  hoforo  the  time  fixed  for  performance.  Kennedy 
V.  Ropers.  2  Kan.  A  pp.  7CA. 

11  Proscott  V.  rjiiyler,  .".2  111.  312;  ITotchklns  v.  Ilodfre,  .?R  Barb. 
117:  Cf)lo  V.   ITollidiiy,  4   Mo.   Apft.  94;   AdMiiis   v.   By(M-ly.   123   lud. 

12  Martin  v.  Patton.  1  T>ittoll  (Ky.).  2.34;  Groonup  v.  Stoker,  3 
Glim.  212. 

18  Button  V.  McCauloy,  5  Abb.  Pr.  (N.  S.)  29. 


§§    I3l'>9,  13T0  FORMS    OF    COMTLAINTS.  HO 

void.^'*  iS'o  uctiou  can  bo  mainUvined  for  a  breach  of  promise  of 
maiTiago  made  in  eoiisideraliou  of  illicit  sexual  iutercoui"iJe  be- 
tween the  parties.  ^"^ 

§  1369.  Promise  after  seduction  A  ])romise  of  marriage 
made  after  seduction  has  been  efl'ected,  and  in  consequence 
thereof,  is  not  thereby  rendered  invalid.  It  is  not  liable  to  the 
objection  that  it  encourages  immorality,  because  the  wrong  liaa 
been  already  perpetrated;^**  and  where  a  seduction  is  accom- 
plished by  means  of  a  promise  of  marriage  on  the  part  of  the 
seducer,  a  consent  of  the  female  to  marry  the  seducer,  amount- 
ing to  a  mutual  promise  on  her  part  to  marry,  may  be  implied.*'^ 

§  1370.  Damages.  Damages  for  pecuniary  loss  may  be  re- 
covered, as  for  loss  of  time  in  preparing  for  marriage ;^^  as 
well  as  for  suffering  and  injury  to  prospects  in  life;^*'  and  se- 
duction will  aggravate  the  breach.^**  Special  damages  for  im- 
paired health  may  be  alleged  and  proved,  if  resulting  from  the 
breach.21  Whatever  damages  the  plaintiff  may  have  suffered 
in  consequence  of  the  defendant's  refusal  to  marry  her,  she 
is  legitimately  entitled  to  recover;  and  these  damages  are  to  be 
estimated  from  the  circumstances  of  the  parties,  and  the  situa- 
tion in  Avhich  the  plaintiff  is  left  by  the  defendant's  refusal 
to  perform  his  contract.^  The  interposition  of  the  defense  that 
the  character  of  the  plaintiff  is  unchaste,  even  if  unsuccessful, 
ought  not,  per  se,  to  aggravate  the  damages,  unless  it  is  inter- 
posed in  bad  faith,  from  malice,  wantonness,  or  recklessness.^ 

i4Noice  V.  Brown.  .38  N.  .T.  L.  228;  20  Am.  Rep.  388;  39  N.  J.  L. 
133;  23  Am.  Rep.  213. 

15  Steinfold  v.  Levy,  Id  Abb.  Pr.  (N.  S.)  2G;  Hanks-  v.  N'aglee,  54 
Cal.  .^1;  3.^  ,\m.  Rep.  67;  Boigneres  v.  Bonlon.  54  Cal.  146;  Cart- 
wripht  V.  MoGown.  121  111.  388;  Burke  v.  Shaver,  92  Va.  345. 

leHotchkins  v.  Hodge.  .38  Barb.  117. 

17  People  V.  Kenyon,  5  Park.  Cr.  254. 

iR  Smith,  v.  Sherman,  4  Oiish.  408. 

19  1  Pars,  on  Cent.  543. 

20  Wells  V.  Padgett.  8  Barb.  323;  Leavitt  v.  Outler.  37  Wis.  40. 

21  Bedoll  V.  Powell.  13  Barb.  1.83. 

22Tnbbs  V.  Van  Kleok,  12  111.  449;  see,  also,  Mabin  v.  Webster, 
129  Ind.  4.30;  29  Am.  St.  Rep.  199;  Daggett  v.  Wallace,  75  Tex.  3.52; 
10  Am.  St.  Rep.  908;  Bird  v.  Thompson.  96  Mo.  424. 

23  Powers  V.  Wheatloy,  45  Cal.  113;  see  Johnson  v.  Travis,  33  Minn. 
231;  Dunlap  v.  Clark,  25  111.  App.  573. 


741  PEOMISE   Oi"   MAKKIAGE.  §^    lo71-13Ti 

§    1371.   For   marriage   with   another. 
Form  No.  363. 
[Title.] 
The  plamtifl:  complains,  and  alleges: 
I.  and  II.  [Same  as  preceding  form]. 

III.  That  the  defendant  aftenvards  married  a  certain  other 
person,  to-wit,  one  A.  B.,  coaitrary  to  his  said  promise  to  the 
plaintilf. 

[Or,  III,  That  at  the  time  of  making  said  promise  the  defend- 
ant represented  to  the  plaintitf  that  he  wa^;  unmarried,  whereas, 
in  fact,  he  was  then  married  to  another  person,  of  wliicli  fact 
tiie  plaintiff  had  no  notice] 

[Demand  of  Judgment.] 

§  1372.  Married  man  liable.  A  single  woman  to  whom  a 
man  in  fact  married  represents  that  he  is  single,  and  promises 
marriage,  may  maintain  an  action  against  him  for  his  breach  of 
promise.^ 

§  1373.  Request.  In  caise  of  the  marriage  of  defendant,  a 
request  need  not  be  alleged.^  The  averment  of  marriage  dis- 
penses with  request.^ 

§  1374.  Statute  of  Frauds.  A  parol  contract  of  marriage 
that  may  be  performed  at  any  time  within  three  years,  a,nd  con- 
pcqnently  within  one  year,  is  not  within  the  Indiana  Statute  of 
Frauds;  but  if  not  to  be  performed  within  one  year,  it  is  within 
the  statute.^ 

24  wild  V.  Harris,  7  O.  B.  999:  1  E.  L.  &  E.  40R:  Rlattmacher  v. 
FJnal.  29  Barb.  22;  7  Abb.  Pr.  409. 

s-"'  1  Pars,  on  Oont.  r>44:  Short  v.  Stone.  8  Q.  B.  r^.^S:  Stovonson  v. 
Pf'ttis,  12  Pliila.  4fiS;  Cnmniprer  v.  Muller,  14  N.  Y.  Snpp.  .511;  raine.s 
r.  Smith,  ir,  Mce.  &  W.  1R9;  roinparo  Lovelock  v.  Franklyn,  8  Q.  B. 
371:  Ttirnf^r  v.  Baskin.  2  W.  Law  M.  98. 

2fl  Short  V.  Stone,  supra;  Kerns  v.  Hagenbucklo,  17  N.  Y.  Supp. 
3R7. 

27  Paris  V.  Strong,  51  Ind.  339. 


CHAPTEli  VII. 

SALE    AND   DELIVEKY    OF    CHATTELS. 

§   1375.   Seller  against  purchaser  for  refusing  to  receive  and 
pay  for  goods. 

Form  No.  366. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day   of    ,   18..,  at 

,  the  plaintiff  and  defendant  entered  into  an  agree- 
ment in  substance  as  follows  [state  the  agreement]. 

II.  That    the    plaintiff'    duly    performed    all    the    conditions 

of  said  contract  on  his  part,  and  was  on  the   day  of 

,  18 .  . ,  at   [the  day  and  place  of 

delivery],  ready  and  willing  to  deliver  said  property,  and  ten- 
dered the  same  to  the  defendant. 

III.  That  defendant  refused  to  accept  said  goods,  or  pay  for 
them,  pursuant  to  said  agreement,  to  the  damage  of  the  plain- 
tiff   dollars. 

[Demand  of  Judgment.] 

§  1376.  Delivery  —  constructive.  A  statement  of  circum- 
stances constituting  a  constructive  delivery  as  equivalent  to  an 
actual  delivery  should  be  unequivocal.^  A  delivery  to  the 
purchaser  of  a  city  weigher's  certificate  of  sugar  lying  on  the 
wharf  is  a  sufficient  delivery.^  The  delivery  of  the  export  entry 
is  not  a  delivery  of  the  article  sold.^  Mere  delivery  of  a  bill  of 
parcels  is  not  sufficient.^  The  delivery  of  an  order  on  the  cus- 
tom-house, when  the  buyer  fraudulently  intends  not  to  pay, 
knowing  his  inability  to  do  so,  is  no  delivery.^  The  delivery, 
with  indorsement,  of  a  shipping  broker's  acknowledgment  of 
the  receipt  of  merchandise  to  be  transported,  drawn  in  the  form 
of  a   bill    of  lading,   but  not  signed   by  the  carrier,   is  suffl- 

1  Bailpy  V.  Oprlon.  ?>  .Tohns.  P-Df):  3  Am.  Deo.  509. 
2r;iasj;ow  V.  Xicholson.  2.^>  >ro.  29. 
a.Tolinson  v.  Smith,  Anth.  N.  P.  81. 
4  Smith  r.  Mason,  Anth.  N.  P.  22.5. 
B  Ives  V.  Polak,  14  How.  Pr.  411. 


743        SALE  AND  DELIVERY  OF  CHATTELS.   §§  1377,  1378 

cient  to  constitute  a  constructive  delivery  of  merchandise  to  one 
who  made  advances  upon  the  faith  of  it.**  An  order  on  the 
depositary  of  goods  sold,  given  by  the  vendor  to  the  vendee, 
constitutes  a  delivery  as  between  themselves.'  The  transfer  of 
warehouse  receipts  operates  as  a  constructive  delivery  of  the 
goods.* 

§  1377.  Delivery  of  less  quantity.  If  a  vendor  delivers  a 
less  quantity  of  goods  than  he  contracted  to  deliver,  the  vendee 
is  at  hberty  to  refuse  to  accept,  and  if  he  accepts  a  part,  he  may 
return  that,  and  refuse  to  accept  less  than  the  whole,  but  having 
received  and  retained  a  part,  he  can  not  refuse  to  pay  for  the 
])art  received.^ 

§  1378.  Delivery  —  in  general.  Selecting  goods,  and  putting 
ihcm  aside  in  the  sellers  shop,  held  sufficient  delivery. ^^  The 
delivery  of  the  keys  of  a  warehouse  in  which  goods  sold  are 
deposited  is  a  sufficient  delivery.^^  Merely  taking  samples  does 
not  amount  to  a  delivery.^-  There  can  be  no  delivery  so  long 
as  anything  remains  to  be  done  by  the  seller  to  ascertain  the 
(luantity  or  quality  of  the  goods,i^  or  so  long  as  anything  re- 
mains to  be  done  by  either  party  to  ascertain  the  price.^"*  Cum- 
bersome and  heavy  articles  may  be  delivered  witliout  actiuil 
removal.  Delivering  a  schedule,  followed  by  an  agreement  on 
llio  part  of  the  buyer  with  the  depositary  for  keeping  charge  of 
tliem,  is  sufficient.^''  The  possession  of  the  vendee  must  be 
sufficient  to  give  notice  to  tlie  usual  customers  of  the  vendor 

a  Reed  v.  Proprietors,  etc.,  S  How.  (T'.  S.)  284;  Bank  of  Rocliester 
V.  .Tones,  4  N.  Y.  41)7;  .'.5  Am.  Dec.  290:  Rawls  v.  Deshler,  28  How. 
Pr.  CO.  Delivery  to  common  carricM-.  Soo  Cf?mtnonwoalth  v.  Flem- 
ing:. 1.*^0  Ponn.  St.  rP,H:  17  Am.  St.  Kep.  7t«;  Kessler  v.  Smith,  42 
Minn.  404. 

7  Siperson  v.  Harl<or,  in  .Mo.  101. 

ft  Burton  v.  Turyoa.  40  111.  320;  89  Am.  Dec.  350. 

fiPolhemvis  v.  Ilciman.  4.1  Cal.  .173;  Shields  v.  Pettee.  2  Sandf. 
202. 

If  Brewf-r  v.  Salisbiirv.  9  Barb.  .111. 

"  Wilk.'s  v.  rcrris.  r,  .lohiis.  ."..",.-.;  4  .\in.  Doo.  3(11;  Oray  v.  Davis. 
10  N.  Y.  2.81;  Sharp  v.  rornr'll,  (Ji;  Wis.  02. 

i2Joluisfm  v.  Smitli,  .\iitli.  X.  P.  81;  Carver  v.  Lane.  4  E.  D. 
Bmith,  108. 

I.-?  CunninfTliam  v.  .\abbrook,  20  M'>.  r..'..'l;  Outwater  v.  Dodge,  7 
Cow.  8.1;  Panitliers  v.  Mfrjarvcy.  41  Cal.  1.1. 

iHWard  V.  Shaw,  7  Wend.  404. 

10  Dixon  V.  Buck.  42  Barb.  70. 


^§    loTi),  loSU  lH»i;.\ls    OV    COMi'l.AlXTS.  Y-i-i 

tliai  ilic  goods  lia.vc  fhangxti  liaiult-,  and  lliat  the  lUlo  has  passed 
out  ol'  tlie  voudor.^"  liul  a  complaint  alleging  a  sale  of  the 
plaintiti's  right,  title,  and  interest  in  certain  chattels,  and  a  tak- 
ing possession  by  the  defendant,  is  sutlicient  without  alleging 
what  interest  the  plaintiif  owned.'"  And  where  the  complaint 
in  an  action  for  the  price  of  logs  alleges  that  the  defendant  took 
possession  of  them,  the  complaint  is  suilicient  although  other 
allegations  may  show  that  the  plaintiff  was  not  in  the  actual  pos- 
session of  the  logs  at  the  time  of  sale.'^ 

§  1379.  Delivery,  how  alleged.  Tender  and  refusal  of  goods 
on  the  part  of  the  principals  is  equivalent  to  delivery,  and 
may  be  specially  averred.^**  A  performance  of  all  the  conditions 
on  plaintiff's  part  may  be  alleged.  ' 

§  1380.  Growing  crops,  delivery  and  sale  of.  A  growing 
crop,  until  ready  for  the  harvest,  can  not  by  itself  become  the 
object  of  a  delivery,  and  can  only  be  delivered  into  the  pos- 
session of  the  vendee  by  delivering  to  him  the  possession  of  the 
land  also  of  which  it  is  a  part.^*'  Growing  crops  are  not  unlike 
ships  and  cargoes  at  sea  in  respect  to  their  delivery,  of  which 
delivery  can  not  be  made  until  they  reach  port.  If  delivery  be 
made  within  a  reasonable  time  after  reaching  port,  the  sale  is 
good  as  against  creditors  and  subsequent  pnrchasers.^^  They 
are  not  subject  to  manual  delivery  until  they  are  harvested, 
and,  therefore,  until  harvested  they  are  not  in  the  possession  or 
under  the  control  of  the  vendor,  within  the  moaning  of  the 
Statute  of  Frauds.^^     A  growing  crop,  wliile  growing,  and  until 

i«  ITerr  v.  Denvor.  etc..  Co..  18  Col.  40fi. 

17  Duzan  v.  Mosorve,  24  Oreg.  Ti2Z. 

iSTinjjley  v.  Fan-lmven  Land  Co.,  D  Wash.  St.  .34. 

i9Kemble  v.  Wallis.  10  Wend.  374. 

20  Davis  V.  JiloFarlane,  37  Cal.  634:  90  Am.  Deo.  340. 

21  Joy  v.  Pears.  0  Tirk.  4;  Portland  Bank  v.  Staeey,  4  Mass.  601; 
3  Am.  Dec.  2r,3:  Buffington  v.  Curtis,  !.''>  Mass.  ."2«!:  8  Am.  Dec.  11.5. 

22Bours  V.  Webster,  6  Cal.  G60;  Vlshor  v.  Webster,  13  id.  TiS; 
Paoheoo  v.  Himsackpr.  14  id.  120;  Bemal  v.  Hovious,  17  id.  541;  79 
Am.  Doc.  147;  Bobbins  v.  Olalian.  5  Duval  (Ky.),  2S;  cited  in  Davis 
V.  McFarlane.  37  Cal.  034;  99  Am.  Dec.  340.  On  a  sale  of  a  crop  of 
fmit  of  a  future  season  the  title  does  not  pass  in  the  absence  of 
circumstances  showing  a  contrai-y  intention,  and  the  transaction 
is  regarded  an  agreement  to  sell  as  distinguished  from  a  sale. 
Blackwood  v.  Cutting  Packing  Co.,  76  Cal.  212;  9  Am.  St.  Rep.  199; 
compare  Cutting  Packing  Co.  v.  Packers'  Exchange,  86  Cal.  574;  21 
Am.  St.  Bep.  63. 


745  SALE    AND    UELIVKKY    OF    CHATTELS.      §§    1381,    138.^ 

ready  for  the  harvubt,  is  also  unail'ected  by  the  fiiteenth  section 
of  the  statute  iu  relation  to  tlie  sale  of  goods  and  chattels  in  the 
possession  and  under  the  control  of  the  vendor.-^  Contracts  for 
the  sale  of  growing  periodical  crops  are  not  within  the  Statute 
of  Frauds,  and,  therefore,  need  not  be  made  in  writing.^  So 
a  contract  to  deliver  corn  not  yet  gathered  or  husked,  as  it 
requires  labor  to  be  expended  on  the  subject-matter  to  prepare  it 
for  delivery,  is  not  within  the  Statute  of  Frauds.^  It  is  not  the 
policy  of  the  law  to  interdict  sales  of  growing  crops  by  declar- 
ing them  absolutely  fraudulent,  on  the  mere  ground  that  the 
seller  retains,  as  he  must  necessarily  do,  the  possession  of  the 
property  until  it  shall  become  susceptible  of  actual  delivery .^^ 

§  1381.  Delivery  by  and  liability  of  carrier.  Lpon  demand 
by  the  vendor,  while  the  right  of  stoppage  in  transitu  continues, 
the  carrier  will  become  liable  for  the  conversion  of  the  goods, 
if  he  decline  to  redeliver  them  to  the  vendor,  or  delivers  them 
to  the  vendee.^  And  a  notice,  without  demand,  to  redeliver, 
is  sufficient  to  charge  the  carrier,  if  he  is  clearly  informed  that 
it  is  the  intention  and  desire  of  the  vendor  to  exercise  his  right 
of  stoppage  in  transitu.'^  And  notice  to  the  agent  of  the  carrier, 
who  in  the  regular  course  of  his  agency  is  in  the  actual  custody 
of  the  goods  at  the  time  the  notice  is  given,  is  notice  to  the 


carrier 


29 


§  1382.  Ship  and  cargo,  delivery  of.  If  the  delivery  of  a 
sliip  and  cargo  1)0  made  witliin  a  rea8onal)le  time  after  reaching 
port,  the  sale  is  good  as  against  creditors  and  subsequent  pur- 
chasers.^^ 

23  Davis  r.  McFarlnno.  37  Cal.  fi34:  90  Am.  Deo.  340. 

24  Id.:  fitlnp  Marsliall  v.  Ferguson,  23  Cal.  fi6. 

20  Rentch  v.  Lonj;,  27  Md.  188;  see  Stephens  v.  Santee.  51  Rarb. 
r)32. 

20  Davis  v.  MfFnrlano,  37  Cal.  n.34:  00  Am.  Dro.  340;  citinfr  Wlilp- 
ple  V.  Foot.  2.Tolms.  418;  3  Am.  Doc.  442. 

2T  Reynolds  v.  Boston,  otc,  R.  I{.  Co.,  43  N.  H.  580;  Markwald  v. 
TFis  Creditors.  7  Cal.  213:  Blar-kman  v.  Piorce,  23  id.  .^lOS;  O'Xeil  v. 
<;arrptt.  (\  Town,  4Sf»:  .Tonos  v.  Enrl.  37  Cnl.  0.30:  00  Am.   Doc.  338. 

2«  Reynolds  v.  Boston,  etc.,  R.  R.  Co..  )3  \.  TT.  580;  I.itt  v.  Cowley. 
7  Taunt.  100:  Wliitelu^nd  v.  Anderson,  0  M.  i^-  W.  ."18:  Boll  v.  Moss, 
5  Whart.  T80:  PliHps  v.  Comber,  Law  R.,  20  Cli.  755;  20  id.  813; 
Allen  r.  Railroad  Co..  70  Me.  327;  1   Am.  St.  Rep.  310. 

a>  T'-ierrM-  v.  Red  Blnff  TTotel  Fo..  31  Cal.  100:  cib'd  in  .Tones  v. 
Farl.  37  Id.  0.30;  00  Am.  Der.  .3.38. 

30  .Toy  V.  Sears,  0  Piok.  4:  Poi-lbuid  T'.nnk  v.  Stney.  4  Mass.  001; 
3  Am.  Dec.  2."'>3;  Buffinpton  v.  Curtis.  15  Mass.  .528;  8  Am.  Dec.  115. 

04 


§§     loSo,  lobi  lUK.Mb    Ui'    COMl'LAl.NTS.  7'iG 

j  1383.  Rescission  of  contract  —  partial  rescission.  To  re- 
scind a  contract  ior  the  sale  oi  a,  chattel,  the  property  must  bo 
returued,  unless  it  be  vakieless.  to  both  parties.^^  To  constitute 
an  actual  rescission  of  the  contract,  a  redelivery  of  the  goods 
is  necessary .^^  Where  M.  sold  13.  eight  bags  of  wool,  separately 
marked  and  kept  as  one  lot  of  a  particular  kind,  at  one  dallar 
a  pound,  by  one  bill  of  parcels,  li.  having  hrst  opened  some  of 
the  bags,  but  part  of  the  wool  in  one  bag  was  of  a  diilerent 
kind,  and  B.,  without  returning  the  bag,  sent  back  the  contents 
which  M.  refused  to  receive,  it  was  hold  that  B.  coidd  not  par- 
tially rescind  the  contract,  and  that  a  custom  in  such  cases  to 
return  the  bale  found  different  was  inadmissible,  the  bag  not 
having  been  returned;  but  that  B.,  on  proving  a  warranty  and 
breach,  could  recoup  the  difference  between  the  actual  value  and 
the  value  if  it  had  corresponded  to  the  warrant.^^ 

§  1384.  Sales  defined  —  void  sales.  A  contract  to  deliver 
twenty  sheep  in  four  years  for  ten  delivered  now,  is  a  sale,  and 
not  a  bailment.^'*  The  delivery,  by  a  debtor  to  his  creditor,  of 
property,  the  value  of  which  was  to  be  applied  upon  the  debt 
in  good  faith,  is  a  sale.  If  a  standard  or  criterion  is  agreed 
upon  by  which  the  value  should  be  fixed,  and  the  amount  real- 
ized by  that  criterion  was  the  amount  to  be  applied  in  part  satis- 
faction of  the  debt,  that  is  fixing  the  price  sufficiently  to  make 
the  sale  valid.^^  To  constitute  a  valid  sale  of  a  chattel,  so  as  to 
change  the  property  therein,  an  agreement  as  to  price  and  de- 
livery of  the  chattel  is  requisite,  except  in  case  of  a  vessel  at 
sea,  when  the  transfer  is  effected  by  the  bill  of  sale;^'''  and  also 

31  Perley  v.  Balch,  23  Pick.  283;  34  Am.  Dec.  r>C^:  Christy  v.  Onm- 
mins,  3  McLean,  380;  Henckley  v.  Hendrickson.  .^>  id.  170;  Garland 
V.  Bowling,  Hempst.  710. 

32  Miller  v.  Smith,  1  Mason.  4R7:  Close  v.  Crosland.  47  Minn.  .500; 
Whitworth  V.  Thomas,  83  Ala.  30S:  3  Am.  St.  Rep.  72.");  Richardson 
v.  Levi,  69  Ilvm,  432. 

33  Morse  v.  Bi-acUett.  08  Mass.  20.5. 

34  Bartlett  v.  W'hcelor,  44  Barl).  162.  The  distinction  between  a 
sale  and  an  exchango  explained.  Preston  v.  Keene,  14  Pet.  1^3. 
Distinction  between  sale  and  bnilmont.  See  Chickerinc:  v.  Bastress. 
130  111.  206;  17  Am.  St.  Rep.  .*?on;  Forest  v.  Nelson,  108  Ponn.  St. 
481. 

3.5  Dixon  V.  Buck.  42  Barb.  70. 

3R  Harper  r.  Don.crherty.  2  Cranch  C.  0.  284;  see,  also.  Love  v. 
State,  78  Ga,  66;  6  Am.  St.  Rep.  234;  Nance  v.  Mitealf,  19  Mo.  App. 
183. 


T4?'        SALE  AND  DELIVERY  OF  CHATTELS.   §§  1385,  loSG 

oi  glowing  crops.  A  valid  sale  may  be  made  of  personal  goods 
winch  are  out  of  possession,  and  the  sale  will  be  of  the  thing 
itself,  and  not  of  a  chose  in  action.^'^  A  sale  in  violation  of  a 
statutory  prohibition  is  void,  and  no  action  can  be  maintained 
upon  it.  So  of  a  sale  contravening  a  license  law.^'^  When  the 
substance  of  the  thing  sold  is  not  in  existence  at  the  time  of  the 
sale,  such  sale  is  void.^'-* 

§  1385.  Statute  of  Frauds.  A  contract  for  the  sale  of  goods, 
chattels,  or  things  in  action  at  a  price  not  less  than  two  hun- 
dred dollars  is  invalid,  unless  the  same,  or  some  note  or  memo- 
randum thereof,  be  in  writing,  and  subscribed  by  the  party  to  be 
charged,  or  his  agent,  or  unless  the  buyer  accept  or  receive 
part  of  such  goods  or  chattels,  or  the  evidences,  or  some  of  them, 
of  such  things  in  action,  or  pay  at  the  time  some  part  of  the 
purchase  money;  but  when  a  sale  is  made  by  auction,  an  entry 
])y  the  auctioneer  in  his  sale-book,  at  the  time  of  his  sale,  of  the 
kind  of  property  sold,  the  terms  of  sale,  the  price,  and  the 
names  of  the  purchaser,  and  the  person  on  whose  account  the 
sale  is  made,  is  a  sufficient  memorandum.^''  In  determining 
whether  the  Statute  of  Frauds  applied  to  a  sale  of  goods,  deliv- 
ered to  one  person  at  the  request  of  another,  the  true  test  is 
whether  there  is  any  liability  of  the  vendee  to  the  vendor;  for 
if  there  is,  then  the  promise  of  the  guarantor  is  collateral,  and 
must  be  in  writing.  WHiere  the  sale  was  entered  on  the  ven- 
dor's book  as  "sold  A.  B.;  C.  D.  security."  and  the  bill  was 
made  out  thus:  "A.  B.  (through  C.  D.)  bought."  etc.,  and  it 
was  shown  that  the  vendors  had  urged  C.  D.  to  get  securitv 
from  A.  B..  and  offerer!  to  pay  him  for  so  doing,  it  was  held 
that  r.  T>.  could  not  be  rcw-arrled  a.s  the  principal  debtor.''^ 

§  1386.  Stoppage  in  transitu.  This  is  a  right  whicli  the  ven- 
dor, in  goods  sold  upon  credit,  has  to  recall  them  or  retake  them 
u])on  the  discovers'  of  the  insolvency  of  the  vendee,  before  tlie 
goods  have  come  into  bis  possession,  or  any  third  party  has  ac- 

87  The  Sarah  .\nn.  2  Pninn.  2or,. 

««  Best  v.  Bander.  20  Unw:  Pr.  480. 

30Bfr1rnni  r.  T>yon.  1  MoAll.  .').'^:  affirmed  20  TTow.  (TI.  R.)  l.'iO; 
hut  BPe  rrav-fonl  v.  Siwiuer.  02  Mn.  40S:  1.  Am.  St.  nop.  74fi:  Loator 
V.  Bnel.   in  01;io  St.  2.).0:  'M  Am.   St.  Rep.  .■.'")n. 

-tocal.  Tivll  Todo.  §  1024:  and  see  Jamison  v.  Smion,  m  Cal.  17; 
Mpnomy  v.  Tnll.ot,  M  id.  270. 

41  Read  t.  Ladd.  1  Edm.  100. 


j^sj    i:"!>!7.  '  :^8.-^  roinis  of  cu.\iri,AiN'r.s.  7-i8 

qiuitii  bona  liJc  rigliU  in  them.  And  it  continues' so  long  as  the 
L-arrier  remains  in  the  possession  and  control  ot  the  goods,  or  un- 
til theixi  has  been  an  actual  or  constructive  delivery  to  the  vcn- 
dee-or  some  third  person  has  acquired  nbona  fide  right  to  them.'*- 
A  consignor  of  property  in  transitu  has  a  right  to  direct  a  change 
m  its  destination,  and  it^s  delivery  to  a  dill'erent  consignee.''^  A 
vendor  who  had  coJtistructively  delivered  iron  lying  at  his  fur- 
luice,  by  pointing  it  out  to  the  vendee  and  charging  it  to  him 
in  his  books,  receiving  the  vendee's  notes  for  the  same,  may 
retain  the  same  for  the  price,  if,  while  it  is  still  in  his  custody, 
and  said  notes  are  unpaid,  the  vendee  becomes  insolvent."'"' 

§  1387.  Measure  of  damages,  la  an  action  against  a  pur- 
chaser for  nt)t  receiving  goods  according  to  contract,  the  rule  of 
damages  is  the  difference  between  the  contract  price  and  tlie 
market  value  at  the  time  of  thq  breach  of  the  contract.'*^ 

§  1388.  Tender.  The  refusal  of  a  buyer  to  take  the  goods 
which  he  has  contracted  to  buy,  dispenses  with  any  necessity  on 
the  part  of  the  seller  to  make  a  tender  of  them.'*^  Under  a  con- 
tract for  the  sale  and  delivery  of  oats  "  within  thirty  days,"  the 
obligation  to  receive  is  as  strong  as  the  obligation  to  deliver. 
And  the  oontractor  is  not  bound  to  deliver  after  the  contract 
has  expired,  but  if  he  does,  it  will  be  at  the  contract  price.^'^  A 
complaint  on  a  contract  in  which  the  defendant  agrees  to  pur- 
cliase  a  given  quantity  of  hay,  then  in  a  stack,  froin  the  plain- 
tiff, and  pay  a  fi.xed  sura  therefor  at  a  fixed  time,  and  the  hay 
to  be  weighed  at  the  stack,  should  aver,  if  the  hay  has  not  all 
I'oen  delivered,  a  readiness  or  offer  on  the  part  of  the  plaintiff  to 
deliver.^^     Before  an  action  can  be  maintained  for  defendant's 

42.Tonoj=)  v.  Earl,  ?,7  Cal.  fiBO:  09  Am.  Dec.  8RR;  Harris  v.  Tenney, 
R.">  Tex.  2.54;  34  Am.  St.  Rep.  79r>.  ITn(Jer  Oregon  Statute  of  Frauds 
an  agreement  for  the  sale  of  personal  pi'operty  exceeding  .$.50  in 
value  is  void,  imless  the  same  is  in  writing.  Conbitt  v.  Gas  Light 
Co.,  0  Oreg.  405:  25  Am.  Rep.  .541;  but  such  agreement  need  not 
be  ixi  writing  where  tlie  buyer  tiikes  possession.  Duzan  v.  Meserve, 
24  Oreg.  52.3. 

43  Straliorn  v.  TTnion  Stock  Yard,  etc.,  Co.,  43  Til.  424:  02  .\m.  Dec. 
142. 

44  Thompson  v.  "Baltimore  S:  Oliio  R.  Tl.  Co.,  28  Md.  .30fi. 

45  Haskell  v.  McHenry,  4  Cal.  411;  Bfgolow  v.  Legg,  102  N.  T. 
052;  Kadish  v.  Young,  lOR  111.  170;  48  Am.  Rep.  .548. 

40  Calhoun  v.   Yechio.  3  Yv'ash.   C.   C.   105. 

47  Oibbons  v.  United  States.  2  Ct.  of  Cla.  R.  (Xott  &  H.)  421. 

4«  Barron  v.  Frink,  30  Cal.  48G. 


749  SALE   AND   DELIVERY    OF    CHATTELS.       §§    1389-1391 

failure  to  accept  and  pay  for  property  wliich  he  agreed  to  pur- 
chase ai  a  future  time,  a  tender  of  the  property  and  demand 
of  payment  must  be  made.'*'*  A  tender  of  warehouse  receipts  for 
grain  issued  by  responsible  parties  is  a  sufficient  tender  of  the 
grain,  in  Chicago,  unless  objected  to  by  the  other  party  at  the 
time.*^ 

§  1389.  Tender  waived.  After  a  sale  at  buyer's  option, 
within  a  certain  time,  notice  by  the  buyer  before  the  time  has 
expired  that  he  will  not  accept  goods  within  or  at  the  end  of 
such  time,  waives  a  tender  by  the  seller.'^^ 

§  1390.  Tender  and  demand.  Under  a  contract  for  the  pur- 
cliase  of  goods,  where  the  right  of  property^ is  not  passed  by 
the  contract,  the  buyer  is  not  bound  to  accept  the  articles  when 
tendered,  unless  they  correspond  in  quality  with  what  was  bar- 
gained for.^^  The  contract  is  entire,  and  calls  for  an  entire 
performance.^^ 

§    1391.   The  same  —  on  contract  made  by  broker. 
Form  No.  367. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

T.  That  on  the    day  of   ,  18.  .,  the 

plaintiffs  and  defendants  entered  into  an  agreement  by  the 
hand  of  A.  B.,  a  broker  duly  authorized  to  make  the  same,  both 
on  behalf  of  the  plaintiffs  and  of  the  defendants,  of  which  the 
follounng  is  a  copy  [copy  it]. 

IT.  That  at  the  time  of  making  said  contract,  the  defendants 

paid  to  the  plaintiff  the  sum  of   dollars  stated 

therein. 

ITT.  That  the  plaintiffs  were  at  all  times,  within  said 

days,  rearly  and  willing  to  comply  with  the  tcnns  of  said  con- 
tract on  their  part,  and  within  the days  montfoned  in 

paid  contract,  to-wit,  on  the   day  of   , 

<fi  TTnpar  v.  Kinp.  3«  Barb.  200. 

r.n  Mr-Pherson  v.  r.alf.  4f)  Til.  .Vi8. 

Ki  Afr-Phprson  v.  Walker.  40  111.  .371;  see  White  v.  Dob.son,  17  Oratt. 
(Vr\.)  202:  ^fillinper  v.  Dnly.  .'H  Peiin.  Rt.  24.'»:  sec  House  v.  Beak, 
141   Til.  200:  ?,P,  Am.  St.  Rep.  .W7. 

r-2Aflfl.  on  r^nt.  2.'?S:  Rolmors  v.  TJidncr,  17  Abb.  Pr.  202. 

M  Smltli  V.  Rra/1y.  17  \.  V.  17?.:  72  .\ni.  Dpp.  442:  ratlin  v.  Tobias. 
2C  X.  Y.  217;  84  Am.  Dec.  183;  see,  also,  rolhemus  v.  Ileiman,  45 
Cal.  573. 


^^  l;)0'3.  ino;")  Foinis  of  coMin.ATXTs.  750 

18.  .,  at   llu'v  tendered  the  said  property  to  the 

dei'endanls  and  (.lenuuided  ])aynient  ol'  the  balances  of  the  price 
tlu-reof. 

IV.  That  tlie  defendants  refnsed  to  receive  said  property,  or 
])av  the  bahince  of  tlie  price  therefor. 

y.  That  tliey  have  not  paid  the  same  nor  any  part  thereof. 
[Demand  of  Judument.J 

§  1392.  Acceptance.  There  must  be  an  acceptance,  as  well 
as  a  delivery,  to  take  the  thing  out  of  the  statute;  but  the  ac- 
ceptance may  be  by  agent  of  the  buyer.''*  But  the  acceptance 
of  a  mere  shop-boy  is  not  sufficient.'^^  An  acceptance  of  goods 
bearing  a  name  different  from  the  one  used  in  the  sale  note  by 
a  subvendee  of  part  of  goods  sold,  does  not  conclude  the  vendee 
as  to  the  whole  contract.^^ 

§  1393.  The  same  —  on  promise  to  pay  by  a  good  bill  of  ex- 
change. 

Form  No.  368. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of ,   18 .  . ,   at 

,  the  plaintiff  and  defendant  mutually  agreed  witli 

each  other  as  follows.    The  plaintiff  agreed  to  sell  and  deliver 

to  the  defendant  forty  tons  of  iron,  at  the  price  of ; 

per  hundred  weight  on  the    day  of    , 

18. .,  at ,  and  the  defendant  then  promised  Ihe 

plaintiff  to  pay  him  for  said  iron,  by  a  bill  of  exchange  at  three 
months'  date  on  delivery  of  said  iron,  and  that  such  bill  should 
be  satisfactory  to  the  plaintiff. 

II.  That  afterwards,  on  the   day  of , 

IS.  .,  at ,  the  plaintiff  delivered  the  said  quantity 

Qf  iron  to  the  defendant,  upon  the  t-erms  aforesaid,  amounting 
to dollars. 

ITT.  That  the  plaintiff,  on  the day  of , 

1 8 .  . ,  at demanded  of  the  defendant  payment  of 

the  price  of  said  iron,  by  such  bill  of  exchange,  nnd  wa*?  then, 
and  has  been  since  always  ready  and  willing  to  take  the  same, 

M  Ontwator  v.  Dorlire.  0  WpikI.  ^07. 

55  Smith  V.  Mason.  Antli.  N.  P.  225. 

5R  Flint  V.  Lyon,  4  Cal.  17.  See,  as  to  sufficiency  of  acfeptance, 
Rilin  V.  Henkel,  9  Col.  ?,04:  Jfi  re  Hoover.  ?,?,  Hnn,  .''►.5.^;  Roman  v. 
Bresler,  32  Neb.  240;  Gano  v.  Railroad  Co.,  66  Wis.  1. 


TjI  sale    A^D    UEHVEiiY    OE    CHATTELS.       g§    1094-1390 

IV.  That  the  defendant  has  not  paid  the  plaintiff  the  price  of 
the  iron  by  a  bill  of  exchange  payable  in  three  montiis  from 
the  date  thereof,  which  was  satisfactory  to  the  plaintiff,  or 
otherwise  according  to  said  agreement. 

[Demand  of  Judgment.] 

§  1394.  The  same  —  for  not  returning  goods,  or  paying  for 
them  in  a  reasonable  time. 

Form  No.  369. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on   the    day   of    ,   18 . .,   at 

,  the  plaintiff,  at  the  request  of  the  defendant,  de- 
livered to  him  [describe  the  property],  of  the  value  of 

dollars,  upon  the  condition  and  consideration  that  the  defend- 
ant would  purchase  the  same  for dollars,  or  re- 
turn the  same  to  the  plaintiff'  within  a  reasonable  time,  which 
the  defendant  then  and  there  agreed  to  do. 

II.  That  the  plaintiff  duly  performed  all  the  conditions  of 
said  agreement  on  his  part. 

III.  That  a  reasonable  time  for  the  defendant  to  purchase 
and  pay  for  said  goods,  or  to  return  the  same  to  the  plaintiff', 
has  elapsed  before  the  commencement  of  this  action. 

IV.  That  the  defendant  has  not  purchased  said  goods  or  paid 
for  them,  nor  has  he  returned  the  same  to  the  plaintiff'. 

[Demand  of  Judgment.] 

8  1395.  Alternative.  A  contract  in  the  alternative  should 
be  so  set  forth.'^^  And  an  averment  of  demand  of  one  of  two 
things,  when  the  option  of  tlie  defendant  was  in  the  alterna- 
tive, is  not  snfficient.^^ 

§  1396.  The  same  —  for  not  giving  security  according  to  the 
conditions  of  the  sale  at  public  auction,  the  credit  not  having 
expired. 

Fonii   ;Vo.   J70. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.   That   on   tbn    day   of    18..,   at 

file  plaintiff  caused  to  be  put  up  and  exposed  for 

sale  V)y  piibb'r-  anrtion,  in  lots,  rertain  goods  and  chattels,  one  of 

BTHatrh  v.  .Xdnnis.  R  Co^y.  ?,-•.  Stone  v.  Knowlton,  3  Wend.  374; 
Poople  V.  Tllton.  1.^,  Id.  ^^U^. 
csLiitweller  v.  T.lnnell.  12  Barb.  .512. 


§    lo'JT  FOK.MS    UF    t'O.Ml'LAlNTS.  752 

the  said  ii>ts  being  ii  certiiin  carriage,  subject  to  the  following 
terms,  to-wit:  that  tlie  higliest  bidder  shoidd  be  tlie  purchaser, 
iiud  thai  tlie  purchaser  should  be  allowed  seven  months'  credit 
for  the  payment  of  the  price,  after  giving  such  security  as  should 
be  approved  of  by  A.  B.  on  the  part  oi"  the  plaintiff;  or  that  such 
purchaser  should,  at  his  election,  pay  down  the  purchase  price 

at  the  time  of  the  sale,  and  in  that  event  that per 

cent,  should  be  deducted,  by  way  of  discount,  from  the  amount 
of  the  purchase  money,  of  all  of  which  said  terms  the  defendant; 
at  the  time  of  the  sale,  had  notice. 

II.  That  at  the  said  sale  the  defciulant  was  the  highest  bid- 
der for,  and  was  declared  to  be  tlie  purchaser  of  the  said  car- 
riage, subject  to  said  terms  of  sale,  for   dollars. 

III.  That  the  plaintiff  then  delivered  the  carriage  to  the  de- 
fendant, as  such  purchaser,  and  was  then  and  has  since  been, 
always  ready  and  willing  to  perforin  the  said  contract  on  his 
part. 

IV.  That  the  defendant  has  not,  although  then  requested  by 

the  plaintiffs,  paid  any  part  of  the  said  sum  of 

dollars,  nor  has  he  given  any  security  for  the  same,  according 
to  the  said  terms  of  sale. 

[Demand  of  Judgment.] 

§   1397.   For  a  deficiency  on  a  resale. 

Form  No.  371. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of    ,   18..,   at 

,  he  put  up  at  auction,  at  the  auction-house  of 

,  city  of ,  in  this  state,  sundry  [ar- 
ticles of  merchandise],  subject  to  the  condition  that  all  goods 
not  paid  for  and  removed  by  the  purchaser  thereof  within  [ton 
flays]  aft«r  the  sale,  shoulfl  be  resold  at  auction  on  his  account, 
r>r  which  condition  the  defendant  had  notice. 

IT.  That  the  defendant  purchased  [two  hundred  bai'rels  of 
flour]  at  the  said  auction,  at  the  price  of dollars. 

Til.  That  the  plaintiff  was  ready  and  willing  to  deliver  the 
same  to  defendant  on  the  said  day,  and  for  [ten  days]  thereafter, 
and  on  [etc.]  offered  to  do  so,  and  demanded  payment  th.-^r?For. 

TV.  That  the  defendant  did  not  take  away  or  otherwise  re- 
ceive the  said  goods  purchased  bv  him,  nor  pay  for  them  or 
any  of  them  within  [ten  days]  after  the  sale,  nor  afterw^ard. 


753  SALE    AXD   DELIVERY    OF    CHATTELS.       §§    1396-1400 

Y.  That  on  the    day  of    ,   18..,  at 

,  having  first  given  tiie  defendant  reasonable  notice 

of  the  time  and  place  of  resale,  the  plaintiif  resold  the  said  [two 
hundred  barrels  of  flonr],  on  account  of  the  defendant,  by  public 
auction,  for dollars. 

YI.  That  the  expenses  attendant  upon  such  resale  amounted 
to dollars. 

YII.  That  defendant  has  not  paid  the  deficiency  thus  arising, 

amounting  to dollars. 

[Demand  of  Judgjiext.] 

§  1398.  Conditional  sales.  A  vendor  of  goods,  which  he  de- 
livers, but  the  title  to  which  is  to  remain  in  him  until  they  are 
paid  for,  may  recover  them  in  the  hands  of  a  bona  fide  purchaser 
from  the  vendee.^''  In  a  conditional  sale,  the  right  of  the  seller 
to  take  possession  after  a  default  and  sell  the  property,  may 
be  defeated  by  performance  or  an  offer  or  tender  of  perform- 
ance by  the  purchaser,  and  a  sufficient  tender  gives  the  buj'cr 
a  right  to  the  property.^*'  So  he  may  recover  the  value  of  the 
goods  less  the  amount  of  purchase  money  unpaid  at  the  time 
of  the  tender,  and  the  necessary  expenes  of  the  vendor  in  re- 
moving and  taking  care  of  it.^^ 

§  1399.  Rights  of  vendor.  If  the  vendor,  upon  default  of 
the  vendee,  may  at  his  option  rescind  the  contract,  he  may  take 
possession  and  resell  the  property;  but  this  involves  no  forfeit- 
ure of  the  amount  already  paid.'''-  Tlie  seller  becomes,  on  re- 
fusal to  accept,  the  agent  of  the  buyer,  with  power  to  sell.^^ 

§  1400.  Right  of  resale.  Wliere  tlie  buyer  wrongfully  re- 
fuses to  receive  and  |)ay  for  the  goods  sold,  the  seller  has  the 
right,  as  soon  as  he  can  with  flue  regard  to  the  interest  of  the 
buyer,  and  after  giving  him  notice  of  his  intention  to  resell,  to 
pell  the  goods,  and  to  recover  the  difTcronce  between  1lio  n-jvced 

Pt>  Parmleo  v.  ratherwood.  .30  Mo.  47!);  rutnani  v.  Lainiiliier,  30 
Oal.  I.'-.I:  Kohler  v.  TIny.'S.  41  id.  4r>r,. 

fin  TTntrliln^rs  v.  Mnnfrfr,  41  Tirii-b.  .".iiC;  Millor  v.  Sleon.  .'^0  Cal.  403; 
rltfd  in  S.  P..  ?,4  id.  144. 

fii  ^filler  V.  Sfcen,  34  Cal.  144;  SO  ,\ni.  Dor.  124.  foniplaint  in 
aotion  fnr  l)n-ac']i  of  c-onditioiial  a^reemont  to  Ituy  wheat  at  ])lain1iff's 
ortlon.    Bpit>'  v.  Kowalskv.  n.'>  Cal.  134;  20  Am.  St.  Rep.  101. 

«2:s[illPr  V.  Steon,  30  Cal.  407;  Schneider  v.  Railroad  Co.,  20  Orcg. 
172. 

«3  Sands  v.  T.nylor.  .'  .Tohns.  .3S5. 

YoL.  T— 05 


§§    1101-1403  FORMS    OF    COMPLAINTS.  ^54 

price  aud  ilie  sum  realized  at  tlie  sale,  together  with  expeases, 
ironi  tJie  buyer."-*  Tlie  buyer  is  not  entitled  to  speeitie  notiee 
of  the  time  and  place  of  the  resale.^  But  he  must  dispose  oi 
the  goods  in  good  faith.^'' 

§   1401.   By  manufacturer  for  goods  made  at  defendant's  re- 
quest and  not  accepted. 

form  No.  372. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18..,  at 

,  the  defendant  agreed  with  the  plaintiff  that  the 

plaintiff  should  make  for  him  [ten  casks],  and  that  defendant 

should  receive  for  the  same,  upon  delivery  thereof 

dollars. 

II.  That  the  plaintiff  made  the  said  casks,  and  on  the 

day  of ,  18. .,  offered  to  deliver  the  same  to  de- 
fendant and  has  ever  since  been  ready  and  willing  to  do  so. 

Til.  That  defendant  has  not  paid  for  the  same,  nor  any  part 

thereof. 

[Demand  of  Judgment.] 

§  1402.  Breach  of  contract.  If  one  contracts  to  make  mer- 
chantable lumber  for  another,  and  the  other  takes  away  un- 
merchantable lumber  contrary  to  the  wish  and  orders  of  the 
maker,  this  is  not  a  breach  of  the  contract  on  the  part  of  the 
maker.^'^ 

§  1403.  Manufacturing  goods.  A  contract  to  deliver  goods 
to  be  manufactured  l)y  the  party  agreeing  to  deliver,  is  not  an 

G4  2  Kent's  Com.  504;  Cross  v.  Billings,  1  Salk.  3;  Holmes  v.  Hall, 
6  Mod.  1G2;  Maclean  v.  Dunn,  4  Bingh.  722;  Pollen  v.  Le  Roy,  30 
N.  Y.  .549;  compare  Healy  v.  Utley,  1  Oow.  345.  An  averment  in  a 
complaint  for  breach  of  contract  to  buy  goods  held  in  pledge  by  a 
third  person,  that  the  defendant  was  indulged  for  over  a  year  lon- 
ger than  his  original  agreement  allowed  linn  in  which  to  pay  for 
and  receive  the  goods,  is  a  sufficient  averment  that  a  reasonable 
time  ,vas  given  to  comply  with  the  contract  before  resale  of  the 
poods  pledged  by  the  pledgee.     ITabenicht  v.  TJssak.  77  Cal.  140. 

'i"' Bogart  V.  O'Regan.  1  E.  D.  Smith.  .500;  Mch^achron  v.  BundnlH. 
34  Barb.  301.  This  has  been  disapproved  in  Ingram  v.  Matthieu, 
3  Mo.  209. 

Bfi  Crooks  V.   Moore.   1    Rnndf.   297. 

67  Hale  V.  Trout,  35  Cal.  229. 


755  SALE    A-\D    DELIVERY    OF    CHATTELS.       §§    1404-14:07 

agreement  for  the  sale  of  goods  within  the  statute.*^  So  flour, 
contracted  to  be  manufactured  and  delivered,  is  not  within  the 
6tatute.«» 

§  1404.  Causes  of  action.  A\^here  the  person  ordering  the 
goods  refuses  to  take  them  when  made,  it  has  been  held  that 
the  maker  may  deliver  to  a  third  party,  with  notice  to  the  de- 
fendant, and  sue  for  goods  sold."*^ 

S  1405.  Materials  found.  It  has  been  held  that  the  plain- 
tiff can  not,  on  an  account  for  goods  sold,  recover  merely  upon 
proof  of  materials  found  by  him,  and  used  in  services  rendered.^^ 

§  1406.  Title  to  property.  Where  the  plaintiff  sold  a  num- 
ber of  bales  of  drillings  to  A.,  for  the  purpose  of  making  sacks, 
deliverable  to  A.,  as  fast  as  he  needed  them  for  manufacturing, 
and  A.  agreed  to  store  the  sacks  as  fast  as  made,  subject  to  plain- 
tiff's order,  with  the  privilege  of  retaking  them  as  fast  as  he 
Bhould  pay,  it  was  held  that  the  title  rested  in  A.,  and  plaintiff 
had  no  lien  thereon,  or  on  the  saks,  until  delivered  to  him."^ 

§  1407.  For  breach  of  promise,  by  purchaser  of  good  will,  not 
to  carry  on  rival  trade. 

Form  No.  373. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  heretofore  the  defendant  carried  on  the  business  of 

,  at ;  and  on  or  about  the 

day  of ,  IS.  .,  in  consideration  that  the  plaintiff 

would  purchase  from  him  his  store  and  goods  therein,  for  the 

sum  of   dollars,  and  the  good  will  of  the  said 

business  for  Ibo  sum  of   dollars,  the  defendant 

«8CTOOkshank  v.  Burrdl,  IK  Jolms.  ns;  n  Am.  Deo.  187:  Sewall 
V.  Fltr-h.  «  Cow.  21.'i;  ConrtwriKht  v.  Stewart,  10  Barb.  AVyiS;  Dono- 
van V.  Wilson,  20  Id.  1.3S;  I'jirkcr  v.  Sfhcnck.  'JS  id.  .3.S;  Robortson 
X.  Vantrlian,  .">  Sandf.  1:  Mannf.'uturint,'  Co.  v.  Ilollirook,  US  N.  Y. 
r>8n:  ir,  Am.  St.  Hei).  TSS.  Contra.  Pratt  v.  Miller,  TOO  Mo.  78;  32  Am. 
St.  Rpp.  0.^. 

BOBronson  v.  Wiman.  10  I'.nrb.  400;  Cooke  v.  Millard,  G5  N.  Y.  352; 
22  Am.  Kep.  CI  ft. 

TOBomc-nt  v.  Smith,  1.'.  Wend.  403. 

71  Cottrcll  V.  Appsoy,  0  Taunt.  .322. 

72  Hewlett  V.   Flint,   7  Cal.  204. 


§§  liOS,  140i)      FORMS  OF  COMPLAINTS.  756 

agreed  wiUi  the  plaintill  that  he  woiiKl  not  at  any  time  there- 
after, by  himself,  or  partner,  or  agent,  or  otherwise,  either 
directly  or  indirectly,  set  up   or  carry   on  the  business  of  a 

at ,  or  at  any  other  place  within 

tJie  city  of 

li.  'riiat  the  piaiutiir  accordingly  purchased  from  the  defend- 
ant his  said ,  for  the  price  and  at  the  terms  afore- 
said, and  paid  said  sum  of   dollars  for  the  said 

store  and  goods,  and  the  good  will  of  said  business. 

III.  That  the  plaintiff  duly  performed  all  the  conditions  of. 
said  agreement  on  his  part. 

IV.  That  the  defendant  aftcrw^ards,  to- wit,  on  the 

day  of ,  18.  .,  set  up  and  carried  on  the  business 

of ,  at 

[Demand  of  Judgment.] 

§  1408.  Acceptance.  The  acceptance  of  the  property  pre- 
cludes an  action  by  the  buyer  against  the  seller,  for  damages,  on 
the  ground  that  the  articles  actually  furnished  do  not  correspond 
with  the  co-ntract.'^^  The  buyer,  by  retaining  the  property 
without  notice  to  the  seller,  waives  all  remedy  upon  the  con- 
tract for  any  breach  of  an  obligation  implied  by  law%  e.  g.,  the 
obligation  to  deliver  an  article  of  merchantable  quality.'^'^ 

§  1409.  Agent,  purchase  from.  An  allegation  that  the  gooda 
were  purchased  of  A.,  the  agent,  then  and  there  acting  for  de- 
fendant, is  sufficiently  certain  to  prevent  any  misapprehension 
of  its  meaning,  and  is  the  same  as  if  the  allegation  was  of  the 
purchase  from  defendant.'^^ 

73  Reed  V.  Randall,  29  N.  Y.  358;  86  Am.  Dee.  305;  Fitch  v.  Car- 
penter,  43   Barb.   40. 

74  Fisher  v.  Samuda.  1  Camp.  190;  Milner  v.  Tucker,  1  Car.  &  P. 
1.5;  Halliday  v.  McDouffall,  20  Wend,  fil;  Hargous  v.  Stone,  5  N. 
Y.  73:  Sliiolds  v.  Pettee,  2  Sandf.  262;  Howard  v.  Iloey,  23  Wend. 
3.50;  3.5  Am.  Dec.  572;  1  Stark.  477;  2  Kent.  480;  1  Pars,  on  Cont.  475; 
Reed  r.  Randall,  29  N.  Y.  2.50.  But  the  buyer  docs  not  lose  his 
riprhts  arising  from  a  breach  of  warranty  by  accepting  and  using 
a  portion  of  the  goods,  if  it  was  agreed  at  the  timo  of  such  ac- 
ceptance that  the  rights  of  the  parties  were  not  to  be  affected 
thereby.  Blackwood  v.  Cutting  Packing  Co.,  76  Cal.  212;  9  Am.  St. 
Rep.  199. 

75  Cochrane  v.  Goodman,  3  Cal.  244. 


757  SALE    AXD    DELiVEKi    Ui-    CHATTELS.       §§    1^10-1412 

§   1410.   Buyer  aguinst  seller,  for  not  delivering  goods  sold. 
For)ii  Xo.  2/4. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  Tliat  on  the  day  of   ,  18 .  .,  at 

,  the  plaintili'  and  defendant  mutually  agreed  that 

the  defendant  should  deliver  [one  hundred  sacks  of  potatoes] 

to  the  plaintiti  [on  the day  of ,  18.  .  1, 

and  that  the  plaintiff  should  pay  therefor dollars 

on  delivery. 

II.  That  on  the  said  day,  the  plaintiff  was  ready  and  willing, 
and  offered  to  pay  the  defendant  the  said  sum,  upon  delivery  of 
the  said  goods. 

III.  That  the  defendant  has  not  delivered  them. 

[Demand  of  Judgment.] 

§  1411.  Action  by  assignee.  Where  plaintiff  contracted  for 
the  delivery  of  a  quantity  of  lumber  after  a  certain  time,  and 
on  three  days'  notice,  and  assigned  the  contract  to-  another,  the 
delivery  and  payment  were  concurrent  acts."^®  In  case  of  an 
assignment  by  the  buyer,  the  demand  of  performance  of  a  con- 
dition precedent  on  the  part  of  the  vendor  must  be  made  upon 
the  vendor,  and  not  alone  upon  the  assignor.''"^  Where  a  party 
who  has  purchased  goods  by  fraudulent  representations,  assigns 
them  in  payment  of  a  pre-existing  debt  to  one  who  takes  them 
bona  fide,  without  notice  of  the  fraud,  the  latter  acquires  a  good 
title  as  against  the  original  vendor.'^^ 

§  1412.  Condition  precedent.  Where  defendants  stipulated  to 
sell  plaintiff  certain  merchandise  "shipped"  from  Eatavia,  and 
the  parties  agreed  that  the  contract  should  be  binding  imtil  the 
arrival  of  the  ship,  its  arnval  is  a  condition  precedent,  which 
must  be  shown  before  either  party  can  maintain  an  action.'^^ 

T"  Fruit  v.  Pliolps.  4  Pal.  2S2. 

"7  Dnst.'in  V.  MfAndrew,  U)  T*,osw.  1.^0. 

7«  Butters  V.  IT:niirlnvont.  A2  Til.  IS:  .S,0  Am.  Do^.  101;  Woolridce 
V.  Tliir'l(>,  r,',  Ark.  i~>:  hut  sep  Kfihinson  v.  Haas.  40  Cal.  474.  where 
It  la  held  that  a  sale  of  persoiial  pfopcrty  passes  to  tlio  imrohaser 
only  such  title  as  the  vondor  h;i(l.  See,  mIso,  Eaton  v.  Davidson.  40 
Ohio  St.  .T.."»;  Sk'opor  v.  Davis.  CI  \.  IF.  nO;  10  Am.  St.  Rep.  'Ml; 
Stevens  v.   Rrciinati.  70  N.   Y.  2'>\. 

70  Middleton  v.  Ballintrall.  1  f'al.  440:  RiiaseU  v.  Mr-olI,  Vi  Wond. 
112:  20  Am.  Dpo.  (;7u;  Shields  v.  Pettle,  4  N.  Y.  i:>2;  Benedict  v. 
Field,  10  N.  Y.  595. 


^§    lllo-lilT  rOIvMS    OF    COill'LAlNTS.  708 

§  1413.  Damage.  In  an  action  I'or  not  delivering'  the  thing 
sold,  the  measure  of  damages  is  the  value  at  the  tune  of  the 
breach.'*'^ 

I  1414.  Delivery  —  time.  H  a  contract  or  order  under  which 
goods  are  to  be  furnished  docs  not  specify  any  time  at  which 
they  ai-e  to  be  delivered,  the  law  implies  a  contract  that  they 
slioiUd  be  delivered  in  a  reasonable  time;  and  no  evidence  will 
be  admissible  to  prove  a  specilic  time  at  which  they  were  to  be 
delivered,  for  that  would  be  to  contradict  and  vary  the  legal 
interpretation  of  the  instrument.^^ 

§  1415.  Demand,  averment  of.  A  complaint,  alleging  that 
the  defendant  sold  to  i)laintift's  a  certain  share  of  fruit  growing 
in  an  orchard,  and  after  the  sale  executed  a  guaranty  that  the 
share  of  plaintiffs  should  l)e  at  their  disposal,  and  further  alleg- 
ing a  demand  for  the  same  and  refusal  of  the  defendant  to  de- 
liver, is  demurrable,  as  it  should  have  contained  an  assignment 
of  the  breach  of  the  contract  or  guaranty.^^  The  true  point  at 
issue  is,  whether  the  defendant  undertook  to  deliver.  From 
the  nature  of  the  sale  it  operated  as  a  delivery.  There  was  no 
necessity  of  a  demand  on  defendant,  unless  for  the  purpose  of 
enabling  him  to  comply  with  his  guaranty.'^^ 

§  1416.  Executory  agreements.  Executory  agreements  for  the 
sale  of  goods  are  within  the  statute,  as  well  as  other  contracts.^* 
A  contract  for  the  siale  and  delivery,  if  so  completed  as  to  be 
valid  in  the  state  where  made,  will  be  enforced  in  Missouri.^ 

§  1417.  Memorandum.  An  agreement  of  sale  signed  only  by 
the  seller,  but  delivered  to  and  accepted  by  the  buyer,  will 
sustain  the  buyer's  action  for  nondclivcn.'.^^    The  memorandum 

80  Hopkins  v.  Lee.  0  Whoat.  109;  Blyrlonburfrh  v.  Welsh,  1  Bald. 
331:  Shepherd  v.  Hampton,  2  Wheat.  200. 

81  Cooker  v.  Franklin  Manufacturing  Co.,  3  Rnmn.  .530;  see  Ter- 
willicer  v.  Knapp,  2  E.  D.  Smith,  8fi.  Alletration  of  delivery  within 
a  reasonable  time  is  essential.  Pope  v.  Manufacturing  Co.,  107  N. 
Y.  fil. 

82  Davobieh  v.  Emerio,  7  Cal.  209. 
8-3  Td. 

84  Bonnett  v.  Hull,  10  .Tohns.  304. 
»•";  Hoiijrhtalinpr  v.  Ball,  20  Mo.  .503. 

8fiEcrerton  v.  ^rathcM-s.  0  Enst.  307:  Tisdale  v.  Harris,  20  Tick.  9; 
Stevewright  v.  Archibald,  17  Q.  B.  103. 


759  SALE    AND    DELIVEKY    Ol-    CHATl'ELS.       §§    1418-1421 

of  a  clerk  of  a  seller,  of  sales  made  by  liim  at  auction,  is  suffi- 
cient to  bind  the  purchaser.^'  The  memorandum  required  of  a 
contract  of  sale  is  not  binding  upon  the  seller,  unless  signed 
by  the  buyer  also.^*  This,  however,  was  under  a  statute  requir- 
ing the  memorandum  to  be  signed  by  the  parties  to  be  charged 
thereby. 

§  1418.  Offer  to  perform.      The  averments  in  a  declaration 

that  the  "  plaintiff  was  ready  and  wiUing  "  to  receive  goods,  and 
pay  for  them  on  delivery  and  shipment,  is  a  material  one,  and 
necessary  to  be  proved.®^ 

§  1419.  Several  causes  of  action.  A  complaint  which  states 
the  facts  of  the  case  in  ordinary  and  concise  language  is  not 
demurrable  because  such  statement  shows  that  the  plaintiff  is 
entitled  to  recover  upon  two  different  legal  grounds.^^  But 
it  has  been  held  that  the  purchaser  of  a  chattel  can  not,  in  the 
same  action,  seek  delivery  of  possession  of  it,  and  damages  for 
the  nondelivery;  the  one  being  an  action  for  a  tort,  the  other 
upon  contract.^^ 

§  1420.  Tender.  Where  a  party  contracts  for  a  quantity  of 
wheat  to  be  delivered  on  demand,  and  paid  for  on  delivery,  in 
action  for  nondelivery  it  is  unnecessary  for  plaintiffs  to  aver 
and  prove  a  tender  of  the  purchase  money  at  the  time  of  de- 
mand or  before  suit.®^ 

§  1421.  Warehouseman.   A    complaint    against  a  warehouse- 
man, which  doe?  not  allege  that  the  goods  belonged  to  the  plain- 
tiff, or  that  defendant  was  under  an  obligation  to  deliver  them 
to  him,  is  bad.^^ 

>>7  Frost  V.  Hill.  3  Wenrl.  nsfi. 

ssSoo  .Tnstlfo  v.  T..nnfr,  .'iO  Uow.  Pr.  425.  Sop.  ns  to  suffifionoy  of 
moTnornnflnm.  Austrinn  v.  Sprinccr.  04  Mich.  343;  Hanson  v.  Marsh, 
40  ^finn.  1. 

f-n  TJobinson  v.  Tyson,  40  Ponn.  St.  28f>. 

pn  Mills  v.  Barnpy.  22  Tal.  240. 

»i  Fnrniss  v.  Brown.  R  How.  Pr.  59;  Maxwell  v.  Famam,  7  id.  236. 

f<2  Trophy  v.  Watkins.  12  T.nl.  85. 

68  Thurber  v.  Jones,  14  Wis.  16. 


§§    M".?".?-!-!'.'.")  I'OK.MS    01''    COMTLAINTS,  7G0 

§   1422.   The  same  —  for  not  delivering  within  a  specified  time. 

Form  No.  375. 

[Title.] 
The  plaiutitr  complains,  and  alleges: 

I.  That  on  Uie   day  of   ,  18. .,  at 

,  the  plaintill'  agreed  witli  the  defendant  to  buy 

of  him,  and  the  defendant  then  agreed  to  sell  to  the  plaintiff, 

and  to  deliver  to  him  on  the   day  of , 

18.  .,  at , :   bushels  of  oats,  at  the  priee 

of cents  per  bushel,  to  be  paid  for  on  the  delivery 

thereof. 

II.  Tliat  the  said  time  for  the  delivery  of  the  said  oats  has 
elapsed,  and  that  plaintiff  has  always  been  ready  and  willing 
to  receive  the  said  oats,  and  to  pay  for  them  at  the  price  afore- 
said, on  delivery,  according  to  the  terms  of  said  agreement,  of 
all  which  the  defendant  had  notice. 

III.  That  the  defendant  has  not  delivered  the  same,  nor  any 
part  thereof,  to  the  plaintiff,  at ,  or  elsewhere. 

IV.  That  the  plaintiff'  has  thereby  lost  profits,  and  has  sus- 
tained damage  to  the  amount  of dollars. 

[Demand  of  Judgment.] 

§  1423.  Allegation  where  neither  time  nor  place  of  delivery 
was  fixed. 

Form  No.  376. 

That  on  the day  of ,  18 .  . ,  at , 

the  plaintiff  was  ready  and  willing,  and  offered  to  receive  and 
pay  for  said  flour,  and  otherwise  has  duly  performed  all  the 
conditions  thereof  on  his  part. 

§    1424.   Allegation  where  both  time  and  place  were  fixed. 

Form  No.  377. 
That  the  plaintiff  was  ready  at  the  time  and  place  appointed 

to  receive  said ,  and  to  pay  for  the  same  according 

to  the  agreement,  and  otherwise  has  duly  performed  all  the  con- 
ditions of  the  agreement  on  his  part. 

5  1425.  Allegation  where  the  particular  time  of  delivery  was 
not  appointed. 

Form  No.  378. 

That  on  the    day  of   18...  at  the 

place  appointed,  the  plaintiff  was  r^^ndy  to  receive  said 

and  pay  for  the  same,  according  to  the  agreement,  of  which  the 


761  SALE    AND    DELIVERY    OF    CHATTELS.       §§    1426-1429 

defendant  had  notice,  and  the  plaintiff  has  otherwise  duly  per- 
formed all  the  conditions  thereof  on  his  part.'-'^ 

§  1426.  Offer  and  tender.  In  actions  on  a  contract  where 
neither  time  nor  place  of  delivery  was  fixed,  the  plaintiff'  must 
aver  an  offer  or  tender  of  performance  on  his  part/'*^  and  an 
offer  to  pay  on  delivery."-**^  Where  goods  are  to  be  delivered  at 
one  of  two  places,  at  the  option  of  the  seller,  he  is  bound  to 
give  the  buyer  notice  of  the  place  selected."'' 

§  1427.  Time.  "Where  no  time  of  payment  and  no  time  of  de- 
livery are  agreed  upon,  payment  and  delivery  are  concurrent 
acts,  and  neither  can  maintain  an  action  without  showing  a 
readiness  and  willingness  to  perform  on  his  part."^ 

§  1428.  Place.  In  actions  on  contracts  in  which  both  time  and 
place  were  lixed,  it  is  sufficient  to  aver  a  readiness  at  the  place 
appointed  to  receive  and  to  pay."^  And  such  an  averment  is 
essential.  ^"^ 

§  1429.  Tender  on  demand.  It  need  not  be  alleged  that  a 
tender  was  made  ui)on  demand.  The  plaintiff  must  allege  that 
he  was  ready  and  willing  to  pay  for  the  goods  without  a  tender,^°^ 
even  where  his  obligation  depends  on  an  act  of  the  defendant 
to  be  done  at  the  same  time.^^^  Readiness  to  receive  and  to  pay 
according  to  the  terms  of  the  agreement,  and  that  defendant 
had  notice  of  such  readiness,  is  sufficient  ^^•ithout  tender.^'^^  It 
is  sufficient  to  aver  that  he  had  been  at  all  times  ready  to  receive 
and  to  pay.^°^ 

^*  On  a  contract  to  deliver  "  on  or  about "  a  certain  day,  the  seller 
has  a  rcasf)nablo  time  after  the  day  to  deliver.  Kipp  v.  Wiles,  3 
Sanrlf.  r,R.-,. 

f".  T.oster  V.  .Tewett.  11   N.  Y.  4;-.'?. 

^•«  Smith  V.  Wright,  1  Abb.  Pr.  24.'?;  Simmons  v.  Oreou,  3.5  Ohio 
St.  IfH. 

07  ]{r)trprs  V.  Van  IToesen,  12.Tohns.  221. 

osColer  V.  I.ivanston.  2  Oal.  .51;  Diem  v.  Kol)litz.  40  Ohio  St.  41; 
34  Am.  St.  Rep.  .'>31. 

fioVnil  V.  Rice.  .I  N.  Y.  LI.''.:  Clarke  v.  D.nlcs,  20  Rnrb.  42;  and  see 
Dunlin  III  v.  Pettee,  K  N.  Y.  .508. 

i"f>riarl.-c   V.    l»nles,   20  Barb.    12. 

un  Toonl.  y  v.  Anderson.  1  TTill.  .510;  Vail  v.  Rice.  .5  N.  Y.  1.5.5; 
Bronson  v.  ^Viman,  S  id.  1S2;  iimipnrt'  C'liaplii  v.  PotttM-,  1   TTill.  3r)l>. 

ir>2Wliite  V.  Demilt.  2  TTall.  4.''.(!. 

K'^2  r-liit.  TM.  .'>.27;  R.nwson  v.  .Tohnson.  1   TCast.  203. 

104  Porter  v.  Rose.  12  .Tolina.  2ft0;  7  Am.  Dec.  300. 


§§    1-130-1-133  lUK-NiS    Ol'    CUMI'LAINTS.  70^5 

§  1430.  Tender  of  performance.  A  tender  oI  performance  will 
be  necessary  in  contracts  i'or  the  purehase  of  a  ihing  at  a  future 
day  named,  and  at  a  .specified  priee,  and  an  averment  of  readi- 
ness and  willingness  will  not  suilice.^^'^ 

§    1431.    Allegation  of  part  payment. 
I'onii   No.  S79- 
[Title.] 
The  plaintift'  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18.  .,  at 

,  it  was  mutually  agreed  between  the  plaintiff  and 

the  defendant  that  the  defendant  should  sell  and  deliver  to  the 

plaintiff  at ,  on  or  before  the day  of 

,  18.  .,  [describe  the  thing],  and  that  the  plain- 
tiff should  pay  to  the  defendant  therefor  at  the  rate  of 

dollars  per ,  amounting  to dollars,  pay- 
able as  follows: dollars  at  the  time  of  making  said 

agreement,  and  the  residue  on  the  delivery  of  the , 

as  aforesaid. 

II.  That  the  plaintiff  at  the  time  of  the  contract  paid  to  the 

defendant  the  sum  of   dollars,  in  pursuance  of 

the  agreement. 

III.  That  the  plaintiff  was  ready  and  willing  at  the  time  and 
place  aforesaid,  to  receive  said  goods  and  pay  the  balance  there- 
for, of  all  which  the  defendant  had  notice;  yet  the  said  defend- 
ant hath  not  delivered  the  same  or  any  part  thereof;  to  plain- 
tiff"s  damage dollars. 

[Demand  of  Judgment.] 

§  1432.  Payment.  The  giving  of  a  promissory  note,  upon 
a  purchase  of  goods,  is  not  a  sufficient  payment  to  take  the  con- 
tract of  sale  out  of  the  Statute  of  Frauds.^^^  Part  payment,  to 
take  the  contract  of  sale  out  of  the  statute,  must  bo  made  at 
the  very  time  of  making  the  contract.  A  payment  the  next 
day,  though  accepted  on  account,  will  not  suffice.^^'^ 

§  1433.  Rescission  by  vendor.  To  enable  the  vendor  to  re- 
scind the  sale,  he  must  offer  to  return  the  notes  given  for  the 

105  I^estpr  V.  .Teweft,  11  N.  Y.  4.5?,;  Smith  v.  Wripht,  1  Abb.  Pr.  248; 
compare  Coonloy  v.  Anderson,  1  TTill,  .'">in. 

lor,  jrelnnd  \.  .Tohrtpon.  IS  Abb.  Pr.  302. 

K'T  Bissoll  V.  BalrnbTi.  40  Barb.  9R:  Alien  v.  Aguira,  5  N.  Y.  Leg. 
Obs.  .380;  .Tackson  v.  Tuppor.  101  N.  Y.  515. 


763  SALE   AXD    DELIVERY    OF    CHATTELS.      §§    143-1,    1135 

goods.^''^  If  the  contract  be  rescinded,  the  vendee  ia  entitled 
to  recover  the  money  paid.  If  the  contract  is  not  rescinded, 
the  vendees  are  entitled  to  possession  on  payment  of  the  full 
amount  due.^"''  The  party  rescinding  must  put  the  other  party 
in  statu  qito.^^^  Where  A.  has  made  a  payment  in  advance  on  a 
contract  to  purchase  stock  of  B.,  which  B.  refuses  or  fails  to 
deliver,  and  A.  notifies  B.  that  he  claims  the  right  to  rescind  the 
contract,  and  claims  repayment  of  the  money  paid,  the  notice 
does  not  affect  his  right  to  maintain  an  action  for  damages  on 
the  contract.^^^ 

§  1434.   Against  seller  of  stock,  for  nondelivery. 

Form  No.  j8o. 

[Title.] 
The  plaintilT  complains,  and  alleges: 

I.  That  on  the    day  of   ,  18.  .,  at 

,  the  plaintiff  and   defendant  entered  into   an 

agreement  subscribed  by  them,  whereby  it  was  mutually  agreed 
between  them  that  the  defendant  should  sell  and  deliver  to  the 

plaintiff,  at  such  time  witliin  days  thereafter  as  the 

plaintiff  should  elect, shares  of  the  capital  stock 

of  the company,  and  that  the  plaintiff'  should  pay 

him  therefor dollars. 

II.  That  on  the   day  of   ,  18..,  at 

,  the  plaintiff  tendered  to  the  defendant  said  sum 

of dollars,  and  otherwise  duly  performed  all  the 

conditions  of  said  agreement  on  his  part,  and  demanded  of  the 

defendant  that  he  deliver  said shares  of  stock  to 

the  plaintiff. 

III.  That  the  defendant  has  not  dobvorod  the  same. 

[DeMAXD  of  JT^nr.MEXT.] 

§  1435.  Law  of  place.  If  a  contract  for  the  sale  and  assign- 
ment of  certificates  of  stock  of  a  corporation  is  entered  into  in 
another  state,  Init  the  certificates  are  afterwards  delivered  in 
this  state,  the  legality  of  the  sale  and  a,ssignment  is  to  be  tested 
by  the  laws  of  this  state. "^ 

lORpopriill  V.  P.orinfr.  ir^  Tal.  21^;  .Tones  v.  Anderson,  82  Ala.  302; 
Cohn  V.  lloU],  1R  :vro.  App.  11.''). 
i'if>:Millor  V.  Steen,  ."^O  Cal.  407. 

111  .Tonos  V.  PoRt.  r,  Tal.   102. 

112  Dow  V.  rjouUl  »V  Ctirry  S.  M.  Co.,  ."^I  Cal.  029. 


CHAPTER  VIII. 

FOR   SALE   OF   EEAL   PKOPERTY. 

§   1436.  Purchaser  against  vendor,  for  breach  of  agreement 
to  convey. 

Form  No.  381. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of  ,  18.  .,  at 

,  the  plaintiff    and    defendant  entered    into  an 

agreement,  under  their  hands  and  seals,  of  which  the  following 
is  a  copy  [insert  copy  of  contract] 

II.  That  on  the  day  of  ,  18.  .,  the 

plaintiff  demanded  the  conveyance  of  the  said  property  from 
the  defendant,  and  tendered  [ dollars]  to  the  defend- 
ant [or  was  ready  and  willing,  and  offered  to  the  defendant  to 
pay  dollars,  and  duly  to  perform  all  his  agree- 
ments under  the  said  covenants,  upon  the  like  performance  by 
the  defendant]. 

III.  That  on  the day  of ,  18.  .,  the 

plaintiff'  again  demanded  such  conveyance  [or  that  the  defend- 
ant refused  to  execute  the  same] . 

IV.  That  the  defendant  has  not  executed  any  conveyance  of 
the  said  property  to  the  plaintiff. 

[Or,  IV.  That  there  is  a  mortgage  upon  the  said  property, 
made  by to ,  f or dol- 
lars, recorded  in  the  office  of ,  on  the   

day  of ,  38.  .,  and  still  unsatisfied  of  record;  or 

any  other  defect  of  title.] 

[Demakd  of  Judgment.] 

§  1437.  Allegation  of  possession.  An  allegation  in  a  com- 
plaint that  the  plaintiff  "assumed  to  and  did  exercise  acts  of 
control  over  and  possession  of  portions  "  of  a  tract  of  land,  is 
not  equivalent  to  an  averment  that  the  plaintiff  had  actual  pos- 
fiession  of  the  tract  of  land,  or  any  part  of  it.* 

1  Brennan  v.  Ford.  40  Cal.  7. 


765  SALE  OF  REAL  PROPEKTY.     §§  lioS-liil 

§  1438.  Allegation  of  seisin  in  fea.  An  allegation  that  the 
plaintifE  "  is  the  owner  "  of  the  land  sued  for,  is  in  substance 
an  allegation  of  seisin  in  fee,  in  "  ordinary  "  instead  of  in  tech- 
nical language.^ 

S  1439.  Contract  in  the  alternative.  "When  a  contract  is  in 
the  alternative,  as  to  pay  the  purchase  price  or  reconvey  the 
property  on  a  day  named,  the  party  who  is  to  perform  must 
make  his  election  on  the  day  named,  and  if  he  does  not,  he  loses 
his  right  of  election.     He  can  not  wait  till  the  next  day.^ 

§  1440.  Demand  and  refusal.  It  has  been  held  to  be  neces- 
sary either  to  tender  a  deed  for  signature,  or  to  wait  a  reason- 
able time  for  its  preparation  by  the  vendor,  and  make  a  second 
demand.^  But  if  the  vendor,  on  the  first  demand,  positively 
refuse  to  convey,  nothing  more  need  be  clone.^  An  averment 
of  demand  and  tender  is  necessary.^ 

§  1441.  Description  of  property.  He  who  sells  property  on 
a  description  given  by  himself,  is  bound  in  equity  to  make  good 
tliat  description;  and  if  it  be  erroneous  in  a  material  point,  al- 
though the  variance  be  occasioned  by  niista,ke,  he  must  still 
remain  liable  for  that  variance.'^ 

2  Garwood  v.  Hastings,  38  Oal.  21G.  An  allegation  tiiat  the  plain- 
tiff was  the  awner  of  certain  property  at  the  date  he  coiitraeted  to 
sell  it  to  the  defendants  is  immaterial,  if  he  was  the  owner  and  able 
to  malte  deliveiy  tliereof  when  the  time  for  performance  arrived. 
Kleel>  V.  Bard.  7  Wash.  St.  41. 

3  Rewriclv  v.  Goldstone.  4S  Cal.  5~>4. 

4  Lntweller  v.  l.innell,  12  Barb.  512;  Haclcet  v.  Iluson,  3  Wend. 
2.50;  Fnller  v.  Ilulibard.  6  Cow.  17;  see,  however,  Pearsoll  v.  Frazer, 
14  Barb.  .564,  where  it  is  asserted  that  the  above  rule  is  a  rule  of 
evidence  merely,  and  need  not  b.e  set  forth  specially.  As  to  cases 
In  which  a  demand  is  necessary,  see  Bruce  v.  Tilson,  25  N.  Y.  194. 

B  Carpenter  v.  Brown,  0  Barb.  147;  Driggs  v.  Dwight,  17  Wend. 
74;  31    Am.   Deo.  28.3. 

«Boeeher  v.  Conradt.  13  N.  Y.  110;  04  Am.  Dec.  535;  Lester  v. 
Jewett.  11    X.  Y.  4.53. 

7  McFerran  v.  'raylor.  3  Craneli,  270.  An  iiifoni])leto  desfiiption 
may  be  aided  by  extrinsic  parol  evidence  to  apply  it  to  the  siibject- 
m.Ttter,  provided  the  land  can  be  thereby  identified,  and  a  new  de- 
scription is  not  introduced  into  the  eontract.  But  the  <(iiii|»l;iiiit  must 
aver  the  necessary  extrinsic  matter,  to  show  in  connect i(in  witli  the 
description  what  particular  land  was  intended,  ami  it  is  not  sufl!l- 
oii'nt  In  an  acfinn  for  damages  for  nf»nporffirinance  of  tlic  contract 
to  allege  that  by  an  imperfect  description  contained  In  the  contract 


§§    1  i-i".*-14-lG  FOllMS    OF    COMI'LAINTS.  7G6 

S  1442.  Interpretation  of  contract.  lu  lovva,  the  law  will  coa- 
struo  a  contracL  to  be  a  niorlgage,  rather  thau  a  couditioual  sale; 
still  the  iutention  oi'  the  parties  to  the  contract  is  the  true  test.* 

§  1443.  Performance  of  conditions.  Where  A.  sold  a  lot  of 
land  to  13.  and  delivered  possession,  and  in  a  written  contract 
respecting  the  same  it  was  stipulated,  among  other  things,  that 
in  the  event  that  B,  should  be  dispossessed  by  legal  judgment  at 
any  time  within  three  years,  A.  should  pay  back  to  B.  two  thou- 
sand dollars;  and  should  suit  be  brought  against  B.  for  the 
lot,  then  B.  should  notify  A.  of  it,  in  order  to  enable  him  to 
assist  in  the  defense  of  the  title,  it  was  held  that  the  giving  of 
the  notice  by  B.  to  A.  of  the  institution  of  suit  against  B.  for 
the  lot  was  indispensable  to  enable  B.  to  recover  of  A.  on  such 
contract.®  In  a  suit  on  such  contract,  B.  should  aver  that 
he  had  evicted  after  notice  to  A.  The  payment  of  the  money 
is  dependent  on  this  fact.^*^ 

§  1444.  Sale  "  in  writing."  The  party  making  an  allegation 
in  a  pleading,  that  the  sale  of  a  mining  claim,  under  which  he 
claims  title,  was  in  writing,  is  not  thereby  precluded  from 
proving  that  the  sale  was  a  verbal  one.^^ 

f  1445.  Writing,  presumption  of.  If  a  complaint  avers  that 
a  contract  was  made  for  the  sale  of  real  estate,  the  presumption 
is  that  it  was  in  writing.^^  A  finding  of  fact  in  such  case  need 
not  state  that  the  contract  was  in  writing.^^ 

8  1446.  Performance  —  averment  of  excuse  for  nonperform- 
ance. 

Form  No.  382. 

That  on  the day  of ,  18.  .,  at , 

and  before  the  time  for  performance  liad  arrived,  the  defendant 
falsely  and  fraudulently  represented  to  the  plaintiff  that  he  had 
sold  said   to  other  persons;  and  that  relying  on 

the  parties  intended  to  convey  certain  property,  nor  can  sneh  con- 
tract be  received  in  evidence  under  such  an  averment.  Marriner  v. 
Dennison.  78  Cal.  202. 

8  Huffhes  V.  Sheaff,  in  Iowa.  335. 

9  Bpnsley  v.  Atwill,  12  Cal.  231. 

10  Id. 

11  Patterson  v.  Keystone  Mining  Co.,  30  Cal.  360. 

12  McDonald  v.  Mission  View  H.  A.,  51  Cal.  210. 

13  Id. 


767  SALE  OF  REAL  PKOPERTY.  §  liiT 

said  representation,  and  solely  by  reason  thereof,  the  plaintiff 
was  not  prepared  to  receive  and  pay  for  the  same,  as  he  other- 
wise would  have  done.^"* 

§    1447.  The  same  —  for  damages  for  not  executing  convey- 
ance, and  for  repayment  of  purchase  money. 

Form  No.  J6'j. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,  18 . .,  at 

,  the  plaintiff  and  defendant  entered  into  an  agree- 
ment under  their  hands  and  seals,  of  which  the  following  is  a 
copy  [insert  copy]. 

[Or,  I.     That  on  the day  of ,  18.  ., 

at ,  the  defendant  agreed  with  the  plaintiff,  that 

in  consideration  of  the  sum  of  dollars,  the  re- 
ceipt whereof  was  acknowledged  by  the  defendant  in  said  agree- 
ment, in  part  payment,  and  of  the  further  sum  of 

dollars,  for  which  defendant  agreed  to  take  a  note  secured  by 
a  mortgage  on  the  premises  hereinafter  described,  said   note 

and  mortgage  to  be  payable  in  one  year  from  the day 

of   ,  18.  .,  and  to  bear  interest  at  ten  per  cent. 

per  annum,  the  defendant  agreed  to  sell  to  the  plaintiff,  and 
the  plaintiff  agreed  to  buy  from  the  defendant,  the  farm,  then 

the  residence  of  the  defendant,  in  the  town  of , 

county  of  ,  and  state  of ,  contain- 
ing   acres  or  thereabouts,  for  the  sum  of 

dollars  per  acre,  and  that  the  defendant  would,  on  the  said 

day  of  ,  18..,  at  the  

office,  in   city,  between  the  hours  of   

o'clock  in  the  morning  and o'clock  in  the  evening, 

on  receiving  said  note  and  mortgage,  execute  to  the  plaintiff  a 
good  and  sufficient  conveyance  of  the  said  premises,  free  from  nil 
incumbrances,  and  he  further  agreed  to  pay  to  this  plaintiff, 

on    failure   of   performance dollars,   liquidated 

damages.  And  the  plaintiff  agreed  fhat  he  would,  at  the  time 
and  place  above  mentioned,  on  the  execution  of  said  conveyance, 
make,  execute  and  deliver  to  the  defendant  the  note  and  mort- 
gatrp  aforpsaid.] 

IT.  That  on  the   day  of   18..,  at 

[day  and  place  agreed],  the  plaintiff  demanded 

14  riarkp  V.   rrandnll,  27  T'.nrl).  7?,. 


g    1-118  rOlJMS    OF    COMI'LAINTS.  768 

the  convoyauco  of  the  said  property  I'rom  the  Jerendaiit,  aud 
teudored  lo  the  dei'endaut  a  note  and  mortgage  made  aud  exe- 
cuted pursuant  to  the  agreement,  and  was  ready  and  willing,  and 
ollVred  to  the  detendant,  to  make  and  execute  the  note  and 
mortgage  agreed  on,  and  to  deliver  the  same  to  the  defendant, 
nntl  duly  to  perform  all  his  agrrcuR'nts  under  the  said  cove- 
nant, npon  the  like  performance  by  the  defendant,  and  other- 
wise has  duly  performed  all  the  conditions  of  said  agreement 
on  his  part. 

III.  Thattou  the   day  of   ,  18.  .,  at 

,  the  plaintiff  again  demanded  such  conveyance 

[or  that  the  defendant  refused  to  execute  the  same]. 

IV.  That  the  defendant  has  not  executed  any  conveyance  of 
the  said  property  to  the  plaintiff,  nor  has  he  repaid  to  the  plain- 
tiff the  said dollars  paid  by  this  plaintiff  to  the 

defendant  in  part  payment  for  said  property.^^ 

[Demand  of  Judgment.] 

§   1448.   Vendor  against  piirchaser   for   breach   of   agreement 
to  purchase. 

Form  No.  384. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the  day  of  ,  18 .  . ,  at 

,  in  the  county  of ,  and  state  of 

,  the  plaintiff  and  defendant  entered  into  an 

agreement,  under  their  hands  and  seals,  of  which  tlie  following 
is  a  copy  [insert  copy]. 

II.  That  on  the day  of ,  18 .  . ,  at 

,  the  plaintiff  was  the  owner  in  fee  simple  of  the 

said  property,  and  the  same  was  free  from  all  incumbrances,  as 
was  made  to  appear  to  the  defendant,  and  at  said  time  and 
place  he  tendered  to  the  defendant  a  sufficient  deed  of  convey- 
ance of  the  same  [or  was  ready  and  willing,  and  offered  to 
convey  the  same  to  the  defendant  by  a  sufficient  deed],  on  the 
payment  by  the  defendant  of  the  said  sum. 

ITT.  That  the  defendant  has  not  paid  the  same. 
[Demand  of  Judgment.] 

IS  Snffiriont  nllocrntion  of  nondelivery  of  deed.     See  Belcher  v. 
Murphy.  81  Cal.  38. 


769  SALE    OF    REAL    PROPERTY.  §§    1449-14i»3 

§  1449.  Admission.  Jn  assimipsit  for  the  value  of  land  cou- 
veyed  by  plaiutili'  to  defendant,  in  consideration  of  an  oral 
promise  by  the  latter  to  convey  other  land  worth  two  thousand 
dollars  to  the  plaintiff,  which  promise  defendant  now  refuses  to 
perform;  it  was  held  that  defendant's  agreement,  and  the  value 
of  the  land  to  have  been  conveyed  to  him,  might  be  proved  as 
an  admission  of  the  value  of  the  land  which  he  received.^" 

§  1450.  Rescission,  of  contract.  In  order  to  rescind  a  contract 
for  the  sale  of  land,  on  tlie  ground  tliat  the  vendor  can  not  j)er- 
form  it,  having  no  title,  it  is  necessary  to  aver  and  show  an  out- 
standing title  in  another.^^ 

§  1451.  Title.  If  the  true  owner  conveys  the  property  by 
any  name,  the  conveyance  as  between  the  grantor  and  grantee 
will  transfer  the  title.^* 

§   1452.    Averment  of  excuse  for  nonperformance. 
Form  No.  385. 

That  on  the day  of ,  18 . . ,  and  before 

the  time  for  the  plaintiff  to  perform  the  conditions  thereof  on 
his  part,  the  defendant  gave  notice  in  writing  to  the  plaintiff 
that  he  had  determined  not  to  take  the  land;  and  the  defendant 
abandoned  the  agreement,  and  ever  since  wholly  failed  to  per- 
form it,  to  the  plaintiff's  damage dollars.^'-* 

A  refusal  before  the  time  specified,  if  relied  on  as  an  excuse 
for  nonperformance,  must  be  alleged  to  have  been  addressed  to 
the  party  alleging.^ 

i^Basspt  V.  Basset.  .^».t  Me.  127. 

17  Rlddfll  V.  P.hiko.  4  Cnl.  2('4.  To  ontitlo  tho  plaintiff  to  rocovor 
In  suf^h  action,  he  must  allepe  ami  prove  that  he  ha.s  perfoi'ined  all 
the  conditions  on  his  part  to  be  performed,  and  that  the  defendant 
is  in  default  as  to  the  conditions  to  be  performed  by  him.  Dennis 
V.  Strassburper,  ^^  Tal.  "S.",.  "NVliere  a  decree  re<inires  a  reconvey- 
ance of  projteHy  to  tlie  p!;iintiff  on  payment  !ty  liiiii  of  a  certain 
amount,  sncli  jiayinent  iH'comes  n  condition  precedent  to  the  main- 
tenance of  jin  action  to  enforce  the  conveyance,  and  a  complaint 
wiiich  fails  to  alle^re  it  does  not  state  !i  cause  of  nction.  Manandas 
V.   TTeilner,  20  Orep.   222. 

iRpnllon  V.  Kehoe,  ?,R  Cnl.  44;  00  Am.  Dec.  .'U7;  citintr  Middletnn 
V.  Findln,  2.'  Cal.  SO.  To  same  effect  is  D.nvid  v.  Insnrance  Co.,  s;? 
N.  Y.  20.'»;  38  Am.  Rep.  418. 

in  North's  Adm'r  v.  Pepper.  21  Wend.  036. 

20Traver  v.  IT.nlstead,  2.3  Wend.  m. 

Vol.  1—97 


§§    ilji),   iioi  rOU.US    OF    CUMI'LAINTS.  770 

§  1453.  The  same  —  for  not  fulfilling  agreement,  and  for  de- 
ficiency on  resale. 

form   No.  j6'6. 

[Title.] 

Tlio  plaintiir  complains,  and  alleges: 

I.  Thai  the  plaintiU"  was  the  owner  of  four  fifty-vara  lots, 
situated  in  the   western  addition   of   the   city  and  county   of 

,  to-wit,  lots  1,  3,  5,  and  G,  in  block  No. ; 

that  he  put  them  up  for  sale  at  auction  at  the  auction  rooms  of 

C.  D.  &  Co.,  No , street,  in  the  city  of 

,  on  the    day  of    ,   18 . . , 

and  announced  before  the  commencement  of  the  sale,  as  a  part 
of  the  terms  of  sale,  that  ten  per  cent,  of  the  purchase  money 
was,  on  the  day  of  sale,  to  be  paid  by  the  purchaser  to  the  auc- 
tioneers C.  D.  &  Co.,  and  that  if  any  purchaser  failed  to  make 
such  payment,  the  lots  would  be  resold,  and  the  purchaser 
be  charged  with  the  deficiency. 

II.  That  at  the  said  sale  A.  B.,  the  defendant,  bid  for  and 
became  the  purchaser  of  each  and  all  of  the  said  lots,  for  the 
price  of dollars,  gold  coin,  for  each  lot. 

III.  That  the  said  defendant  did  not,  on  the  day  of  such 
sale,  or  at  any  other  time,  pay  ten  per  cent.,  or  any  part  of  the 
price  bid,  nor  the  purchase  money,  nor  any  part  thereof. 

IV.  That  in  consequence  of  such  neglect  of  payment,  and 
after  notice  given  to  the  defendant  of  the  time  and  place  when 
and  where  the  said  lots  should  be  resold  on  his  account,  and  that 
he  would  be  charged  with  the  deficiency,  the  said  lots  were  put 

up  to  resale,  and  resold  at  the  price  of dollars  for 

each  lot,  making  a  deficiency  of dollars  upon  the 

said  four  lots. 

V.  That  the  defendant  has  not  paid  said  deficiency. 

[Demand  of  Judgment.] 

8  1454.  Bights  of  vendee.  Wlien  the  property  has  been  re- 
sold, the  surplus  beyond  the  purchase  money  due  belongs  to 
the  vendee.^ 

21  Gouldin  v.  Buckelew,  4  Cal.  107. 


771  SALE    OF    REAL    PROPERTY.  §§    1455,    1456 

§   1455.   Vendor  against  executor  of  purchaser. 

form  No.  J^/. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of  ,  18. .,  at 

,  the  plaintiff  and  the  said  A.  B.  entered  into  a 

contract  in  writing,  under  their  respective  hands,  of  which  the 
following  is  a  copy  [copy  agreement]. 

II.  That  on  the   day  of ,  18.  .,  at 

,  the  said  A.  B.  died,  leaving  a  last  will  and  tes- 
tament, by  which  he  devised  the  said  property  as  follows  [set 
forth  devise]. 

III.  That  the  defendant  was  appointed  by  said  will  as  the 
executor  of  said  A.  B.,  and  by  an  order  of  the  Probate  Court 

of  the  county  of ,  in  this  state,  made  on  the 

day  of ,  18 .  . ,  said  will  was  admitted  to 

probate,  and  the  defendant  was  then  appointed  and  duly  quali- 
fied as  such  executor. 

IV.  That  on  the   day  of   ,  18.  .,  the 

plaintiff  offered  to  the  defendant  to  convey  the  premises  to  him 
and  the  said  [other  devisees],  and  fully  to  perform  said  con- 
tract on  his  part,  and  requested  the  defendant  to  pay  the  money 
for  the  same,  pursuant  to  the  contract. 

V.  That  the  defendant  then  wholly  refused  to  do  so. 

VI.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

S   1456.   Vendor    against    purchaser,   for    real    property  con- 
tracted to  be  sold,  but  not  conveyed. 

Form  No.  388. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18..,   at 

,  the  plaintiff  and  defendant  mutually  agreed  that 

the  plaintiff  should  sell  to  the  defendant,  and  that  the  defendant 

phniilfl  purchase  from  the  plaintiff  [the  bouse  anrl  lot  No , 

street],  for dollars.     The  following  is 

a  copy  of  said  agreement  [insert  copy.] 

IT.   That  on  the    day  of    18...  at 

the  plaintiff  tendererl  [or  was  ready  and  willing, 

and  offered  to  execute]  a  sufficient  deed  of  conveyance  of  the 
paid  propertv  to  the  defendant,  on  pavment  of  the  said  sum,  and 
Btill  is  ready  and  willing  to  execute  the  same. 


^)^  1457-1  IT) U)  I'oinis  ok  comim.aints. 


772 


111.  That  thf  (.k'tV'iuli'.nt  has  not  [)ai(l  the  said  sum,  nor  any 
part  thereof. 

I  Demand  of  ,1  cdomext. J 

§  1467.  Execute.  "  Execute  "  implies  delivery .^^  It  also  im- 
plies subscription.'-'  An  allegation  of  readiness  and  willingness 
is  necessary.^ 

§  1457a.  Payment  and  delivery  —  mutual  agreements.  As  a 
general  rule,  where  a  written  contract  for  the  sale  and  convey- 
ance of  real  property  provides  that  the  deed  shall  be  delivered 
at  the  time  of  making  the  first  payment,  the  agreement  to 
pay  and  the  agreement  to  deliver  are  mutual  and  dependent 
agreements,  and  performance,  or  an  offer  to  perform  by  the  pur- 
chaser, is  necessary  to  make  it  incumbent  upon  the  seller  to 
deliver  the  deed.^'^ 

§   1457b.   Suflaciency    of    complaint  —  judgment  on  pleadings. 

In  an  action  against  three  defendants  to  recover  the  purchase 
price  of  land,  a  complaint  alleging  that  the  deed  therefor  was 
executed  to  one  defendant  at  the  request  of  the  other  two,  who 
were  the  real  purchasers;  that  the  grantee  named  in  the  deed 
executed  a  note  secured  by  mortgage  on  the  land  for  the  de- 
ferred payment;  and  that  the  other  two  defendants,  at  the  same 
time  and  as  part  of  the  same  transaction,  executed  a  bond  or 
guaranty  for  the  payment  of  said  sum, —  states  a  cause  of  action 
against  all  the  defendants.^^  In  an  action  for  the  purchase 
price  of  land  conveyed  to  the  defendant,  in  which  there  is  no 
denial  of  the  allegation  of  the  complaint  that  the  defendant 
was  in  possession  at  the  time  of  the  commencement  of  the  action, 
nor  a  denial  of  any  other  material  allegation  of  the  complaint, 
the  plaintiff  is  entitled  to  judgment  on  the  pleadings.^^ 

22T.a  Fayette  Insurance  Oo.  v.  Rogers,  30  Barb.  401;  Hook  v. 
White,  .3fi  Cal.  299. 

23  money  v.  Cook,  7  Wis.  41S. 

24  Beecher  v.  Conradt.  13  N.  Y.  110;  CA  Am.  Doc.  535.  An  aver- 
ment that  the  purchaser  is  ready  and  willinj?  to  accept  the  property, 
and  make  payment  therefor  according  to  the  contract,  is  not,  under 
ordinary  circumstances,  equivalent  to  an  averment  of  payment,  or 
of  an  offer  to  pay.    Bailey  v.  Lay,  18  Col.  405. 

25  Bailey  v.  Lay,  18  Col.  405. 

2fi  TTanna  v.  Savage,  7  Wash.  St.  414. 

27  Id. 


7T3  SALE  OF  KEAL  PROPEKTY,   §§  lioTCj  145Td 

§  1457c.  Rescission  —  pleading  —  damages.  A  complaint  in 
an  action  to  set  aside  a  writing,  purporting  to  be  a  contract  for 
the  sale  of  land  belonging  to  a  corporation  defendant,  which 
alleges  that  certain  real  estate  agents,  who  signed  the  contract 
in  behalf  of  the  corporation,  pretended  they  had  authority  from 
the  corporation,  by  written  resolution  of  its  trustees,  to  contract 
for  the  sale  of  its  lands,  but  that  in  fact  they  had  no  such 
authority,  and  which  sets  out  the  contract  in  hacc  verba,  to 
which  the  corporate  seal  is  not  attached,  states  a  cause  of  action. 
And  this  is  so,  although  the  complaint  also  alleges  that  the 
plaintiff,  before  discovering  the  want  of  authority,  paid  a  part 
of  the  purchase  price,  and  that  the  corporation  refused  to  return 
the  amount  paid  upon  demand  of  the  plaintiffs,  claiming  the 
contract  to  be  valid  and  l)inding,  and  had  instituted  suits 
against  the  plaintiffs  to  recover  a  balance  due  on  the  contract.^^ 
In  an  action  for  damages  for  fraud  in  procuring  a  release  of  a 
first  contract  of  sale,  and  in  indorsing  a  new  contract  for  other 
property,  it  is  necessary  to  allege  the  value  of  the  .substitute 
property  as  well  as  that  of  the  property  first  agreed  to  be  sold, 
in  order  to  show  that  any  damage  has  accrued  from  the  fraud. 
If  the  action  is  for  damages  for  breach  of  the  first  contract,  and 
not  for  the  fraud,  the  fraud  should  not  be  alleged  liy  way  of 
anticipation  of  an  expected  defense.  In  any  view  of  the  cause 
of  action,  if  the  complaint  avers  a  rescission  of  the  second  con- 
tract for  fraud,  it  must  show  damage  from  the  fraud  to  justify 
the  rescission,  and  must  aver  the  value  of  the  sul)stituted 
property.^  In  an  action  by  a  vendor  to  set  aside  a  contract 
for  the  sale  of  land  on  the  ground  of  fi-aud,  damages  for  anxiety, 
worry,  and  harassment  arising  from  the  fraudulent  conduct  of 
the  defendant,  and  for  expenses  in  taking  care  of  the  property 
fontracted  to  be  sold,  and  not  recoverable,  and  allegations  in  the 
complaint  setting  out  such  damages  should  be  disregarded  as 
surplusage.^*' 

5  1457d.  Rescission  —  return  of  property  received  under  con- 
tract. A  general  allegation  of  an  offer  by  the  purchaser  to 
rescind  the  entire  contract  of  sale  and  purchase,  and  to  restore 

2«RnlfioI(1  r.  Snttor  Poiinty.  etr.,  Roclniniitiou  To.,  fVI  Cn\.  rA(\. 

20  >rarlner  v.  Deiinlsfni,  7S  Tal.  202. 

»"Xewmnn  v.  Smith,  77  f'al.  22.  Cdiiiiilalnt  statlnjr  canao  of  no- 
tion for  resrlssion  of  lease  on  Rround  of  fraud.  Soe  Wilson  v. 
Moriarty,  77  Cal.  596. 


§    1457(1  FORMS    OF    COMPLAINTS.  774 

to  the  plaintiffs  all  and  every  part  of  the  premises,  is  sulTicient  to 
support  a  judgment  setting  aside  tlie  sale,  and  requiring  the 
purehaser  to  aeeount  and' return  all  property  received  under  the 
contract,  although  the  specific  allegations  as  to  tender  of  restitu- 
tion do  not  include  certain  small  items  of  personal  property 
which  had  heen  thrown  into  the  trade,  and  although  the  value 
of  such  items  is  not  alleged.^^ 

31  Hill  V.  AVilson,  88  Cal.  92.  In  case  of  rescission,  each  party  to 
the  contract  nuist  restore  to  the  other  everything  of  value  received. 
Fountain  v.  Water  Co.,  99  Cal.  G77;  Hammond  v.  Wallace,  85  Id. 
522;  Vineyard  Cx>.  v.  Tuohy,  107  id.  243;  Canham  v.  Piano  Manu- 
facturing Co.,  3  N.  Dak.  229. 


CHAPTEE  IX. 

UPON  UNDERTAKINGS,  BONDS,  ETC. 

i   1458.   Short  form  —  on  \mdertakings  given  in  actions. 
Form  No.  jSg. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of    ,   18..,  at 

,  the  defendant  made  an  undertaking,  a  copy  of 

which  is  hereto  annexed  as  a  part  of  this  complaint,  marked 
"  Exhibit  A." 

II.  That    thereafter,  at   ,  judgment  was  duly 

given  in  the  action  therein  mentioned  against  the  [plaintiff] 

therein,  for  the  sum  of dollars,  no  part  whereof 

has  been  paid. 

III.  That  on  the day  of ,  an  execution 

thereon  against  the  property  of   ,  was  issued  to 

the  sheriff  of  said  county,  which  was,  on  the day  of 

,  18.  .,  returned  wholly  unsatisfied. 

[Demand  of  Judgment,] 

[Annex  copy  of  undertaking.] 

S  1459.  Action  on  undertaking-.  If  a  provisional  remedy  has 
been  allowed  in  an  action,  and  the  action  be  dismissed,  or  a 
judgment  of  nonsuit  entered,  the  undertaking  must  thereupon 
be  delivered  by  the  clerk  to  the  defendant,  who  may  have  his 
action  tbereon.^  Upon  a  bail  bond  for  the  appearance  of  « 
person  arrested  in  proceedings  for  contonipt,  if  tlic  undertaking 
be  prosecuted,  the  measure  of  damages  in  tlio  action  is  the 
extent  of  the  loss  or  injury  sustained  by  the  aggrieved  party  by 
rea.son  of  the  misconduct  for  which  the  warrant  was  issued,  and 
the  costs  of  the  proceed ings.^  T^pon  any  undertaking  in  attach- 
ment given  in  pursuance  of  section  .^)10  or  .').').'),  ralifornia.  Code 
of  f'ivil  Procedure,  suit  may  be  romnu'nced  if  an  execution  upon 

1  Sep  Cal.  Coflo  Civil  Prrieprlnro.  §  r>Rl. 

2  0al.  Code  Civil  Prooorlnre,  S  1220. 


ij§    lUiO,  Mlil  I'OK.MS    OF    lOMl'LAlNTS.  77G 

[\\c  jU(li;iiuMU  1)0  returiu'd  unsat ii^licd,  in  whole  or  in  part;  or 
Jio  may  ])rocood,  a^s  iu  other  cases,  u])()n  the  return  ol'  an  exe- 
cution. 

§  1460.  Averments.  In  an  action  upon  an  undertaking  given 
on  appeal  from  the  judgment  of  a  Superior  Court  for  the  pos- 
session of  real  estate,  for  costs  and  damages,  and  for  the  value 
of  the  use  and  occupation  of  the  premises,  it  is  not  necessary 
to  aver  in  the  complaint  that  the  Superior  Court  had  jurisdic- 
tion to  render  the  judgment  appealed  from.^  Nor  is  it  neces- 
sary to  allege  that  the  undertaking  had  the  effect  to  stay  the 
execution  of  the  judgment,  if  it  appears  therein  that  proceed- 
ings for  the  execution  of  the  judgment  were  never  taken.*  If 
a  copy  of  the  undertaking  be  set  out  in  the  body  of  the  com- 
plaint, it  will  be  taken  and  considered  as  a  part  thereof.'^  A 
complaint,  in  such  case,  is  not  defective  because  it  contains  no 
averment  that  an  execution  had  been  issued  and  returned  un- 
satisfied, or  because  no  demand  for  payment  is  alleged  to  have 
been  made  on  the  principal.^  Nor  is  it  necessary  to  allege  that 
the  plaintiff  in  the  judgment  was  entitled  to  the  possession 
of  the  premises  pending  the  appeal."^  A  complaint  against  the 
obligors  in  an  undertaking  given  on  an  arrest  under  section 
182,  New  York  Code  of  Procedure,  must  show  the  recovery  of 
a  judgment  in  the  action  wherein  it  was  given,  by  the  defendant 
tl)erein.  An  allegation  of  the  disconiinuance  of  such  action  is 
not  sufficient.^ 

§  1461.  Breaches  and  damages.  Taking  all  our  statutes  to- 
gether, the  obvious  design  was  to  put  an  undertaking  on  the 
same  footing  as  a  bond.^  Special  breaches  should  be  assigned 
in  all  cases.^''  ^^Hiere  the  condition  of  a  bond  is  to  pay  the 
debt  of  another,  the  condition  operates  merely  by  way  of  de- 
feasance. A  bond  should  be  sued  on,  setting  out  breaches  and 
damages.^^     Tt  is  in  general  suflficicut  to  allege  the  breach  in 

3  Mnrrlook  v.  Brooks,  88  Gal.  596. 

4Td. 

Bid. 

«Id. 

7  Id.     See,  also,  Pleper  v.  Peers  98  Cal.  42. 

8  Moses  V.  Watorbury  Button  Co..  37  N.  Y.  Snpr.  (5  J.  &  Sp.)  393. 
»  Canfield  v.  Bates,  in  Cal.  G06. 

loWostoni  Bank  v.  RlierAvood.  29  Barl).  P.f^P,. 

11  B.nkpf  V.   Cornwall  4   Cal.   1.^:   Postmastor-Ccnoral   v.    Gross  4 
Wash.  C.  G.  326;  and  see  Morgan  v.  Menzles  60  Cal.  341. 


777  UXUEIITAKIXGS,    BONDS,    ETC.         §§    1402-1464 

the  terms  of  the  condition  of  the  bond.^^  A  declaration  on  a 
bond  given  to  prosecute  with  effect  a  writ  of  replevin,  where 
the  breach  assigned  is,  "  that  the  suit  was  not  prosecuted  with 
effect,"  is  sufficient. ^^  The  nonpayment  of  a  judgment  obtained 
against  the  administrator  may  be  assigned  as  a  breach  of  the 
condition  of  such  bond.^^ 

§  1462.  Conditions.  "\Miere  the  bond  was  not  upon  the  record, 
and  the  complaint  did  not  specify  the  conditions,  it  was  held 
insufficient.^^ 

§  1463.  Construction.  An  undertaking  on  an  attachment  is 
an  original,  independent  contract  on  the  part  of  the  sureties, 
and  must  be  construed  in  connection  with  the  statute  which 
authorizes  it.^^  If  a  word  is  omitted  by  mistake,  and  by  looking 
at  the  whole  undertaking  and  the  statute  it  is  apparent  what 
word  was  intended  to  have  been  inserted,  the  omitted  'word 
may  be  supplied,  and  the  contract  read  as  if  it  had  been  ex- 
pressed, without  first  reforming  it  by  supplying  the  omitted 
word.^''' 

§  1464.  Consideration.  TMiere  it  appears  that  the  instrument 
was  given  in  pursuance  of  a  statute  requirement,  in  a  form  pre- 
scribed thereby,  and  in  a  case  within  the  statute,  those  facts 
constitute  a  sufficient  consideration  to  support  it,  though  it  be 
witliout  seal,  and  no  further  averment  of  consideration  is  neces- 
sary.^^ The  complaint,  by  averring  that  it  was  sealed,  imports 
a  consideration;  it  is  not  nocessarv^  that  it  should  also  show 
that  it  wa.s  \nthin  the  .statute.^®  An  uuflortaking  executed  by 
a  sht^riff  before  releasing  property  which  he  has  ascertained  to 
be  exempt  from  execution,  is  void  for  want  of  consideration.^ 

12  Pop  Rorper  v.  Williams,  4  MoT.ean.  .^77. 
isnornifin  v.  T>onnx.  Kxrs..  l."  Pet.  1W. 

14  Poople  V.  Dnnlajv.  I.*^  .Tolins.  4^~;  sec  Frnnkel  v.  Stern.  44  Cal. 
ITiS,  ns  to  monsuro  of  dninneos. 

IK  Woods  V.  Raincy.  1."  Mo.  4.S1:  and  sen  Donaldson  v.  Butler 
County,  ns  id.  10.'',:  .Tonncr  v.  Stroh,  .'2  Cal.  .^>04;  Crook  County  v. 
BufilinHI.   1.'>  Orejr.  1fi{>. 

i«Frankel  v.  Rtorn.  44  Cal.  IHS. 

17  Td. 

15  Slack  V.  TTeatli.  4  E.  D.  Smitli,  O.";  P.  C,  1  Abb.  Pr.  331;  County 
of  Montfromery  v.   Anrliloy,  U'l  Mo.  12n. 

if»  Clark  V.  Tliorp.  2  Rosw.  0.^0. 
20  Servant!  v.  Lusk.  43  Cal.  238. 

98 


§§    MG5-14Gt)  FOKMb   01'    COMPLAINTS.  778 

§  1465.  Defective  undertaking.  U"  an  undertaking  lias  been 
executed  to  the  defendant  by  a  wrong  name;,  the  latter  has  his 
remedy,  and  may  deseribe  it  as  given  to  him,  and  may  show 
that  he  was  the  party  intended.-^  Wlicre  a  mere  defective  un- 
dertaking has  been  bona  fide  given,  and  the  party  will  hie  a 
good  one  before  the  case  is  submitted,  the  court  should  permit 
him  to  do  so.-^ 

§  1466.  Demand.  Demand  upon  the  principal  is  necessary.^ 
But  a  demand  upon  the  defendant  is  unnecessary.^  But  if  a 
demand  is  necessary  by  the  special  terms  of  the  undertaking, 
it  should  be  averred. 

§  1467.  Description  of  instrument.  A  complaint,  in  an  ac- 
tion upon  a  statutory  undertaking,  which  contains  no  other 
description  of  the  instrument  than  an  allegation  that  it  corre- 
sponds with  the  provisions  of  a  certain  section  of  the  Practice 
Act,  is  defective.  The  defect,  however,  being  of  form  rather 
than  of  substance,  objection  to  it  must  be  taken  by  demurrer 
to  the  complaint.^'^ 

8  1468.  Estoppel.  In  an  action  for  use  and  occupation,  upon 
an  undertaking  on  appeal,  the  defendants  are  estopped  from 
denying  that  the  defendant  in  the  judgment  was  in  the  pos- 
session at  the  time  he  took  his  appeal  and  gave  the  under- 
taking.^ 

§  1469.  Execution  averred.  If  execution  be  issued  in  a 
county  other  than  that  where  judgment  was  rendered,  it  may 
be  averred  as  follows:  That  on,  etc.,  a  transcript  of  said  judg- 
ment was  duly  filed  in  the  office  of  the  clerk  of  the 

court  of  the   judicial  district,  in.  the  county  of 

3  and  on  the  same  day  an  execution  thereon  was 

21  Morgran  v.  'l^hrift,  2  Cal.  .563. 

22  Coulter  v.  Stark,  7  Cal.  244;  Cunninjrham  v.  PTopkins,  8  id.  33. 

23  Nelson  v.  Bostwiek,  5  Hill.  37;  40  Am.  Dee.  310. 

24  Ernst  V.  Rartle.  1  .Johns.  Cas.  319.  Where  a  demand  is  neces- 
sary to  fix  the  liability  of  sureties  to  an  undertakinjr,  it  must  be 
made  before  the  commencement  of  an  action  for  the  breach  of  the 
imdertakinjr.  and  be  averred  in  the  complaint.  Morgan  v.  Menzies, 
0."j  Cal.  243.  SufRfient  averment  of  demand.  See  Gardner  v.  Don- 
nelly, m  Cal.  3f>7. 

25  :s[ills  V.  Gleason,  21  Cal.  274:  82  Am.  Dec.  758;  distinguished  In 
Kurtz  V.  Forquer,  94  Cal.  91. 

26  Murdock  v.  Brooks,  38  Cal.  596. 


779  UNDEETAKIXGS,    BONDS,    ETC.         §§    1470,    14V1 

issued  to  the  slieriii'  oi  said  county,  wiiicli  has  been  returned 
\vholly  unsatisfied. 

§  1470.  Justification.  In  all  cases  where  an  undertaking  with. 
sureties  is  required  by  the  provisions  of  this  Code,  the  officer 
taking  the  same  must  require  the  sureties  to  accompany  it  with 
an  affidavit  that  they  are  each  residents  and  householders  or 
freeholders  \\dthin  the  state,  and  are  each  worth  the  sum  specified 
in  the  undertaking,  over  and  above  all  their  just  debts  and 
liabilities,  exclusive  of  property  exempt  from  execution;  but 
when  the  amount  specified  in  the  undertaking  exceeds  three 
thousand  dollars,  and  there  are  more  than  two  sureties  thereon, 
they  may  state  in  their  affida\dts  that  they  are  severally  worth 
amounts  less  than  that  expressed  in  the  undertaking,  if  the 
whole  amount  be  equivalent  to  that  of  two  sufficient  sureties.^"^ 

§   1471.   On  an  undertaking  for  costs  of  appeal. 
Form  No.  390. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18 .  . ,  judg- 
ment was  rendered  by  the  Superior  Court   of  the  county  of 

,  state  aforesaid,  in  favor  of    the   above-named 

plaintiffs,  against  one  C.  U.,  for  the  sum  of dollars; 

and  that  on  the day  of .,  18.  .,  the  said 

C.  D.  appealed  to  the  Supreme  Court  of  said  state  from  the  said 
judgment. 

TI.  That  upon  said  appeal  the  defendants  made  and  filed  with 
the  clerk  of  said  court,  for  the  use  of  these  plaintiffs,  their 
written  undertaking  and  justification  therein,  of  which  tlie  fol- 
lowing is  a  copy  ["copy  undertaking"]. 

TTT.  That  on  the day  of IR.  . ,  the 

judgment  appealed  from  was  bythe  said  Supreme  Court  affirmed, 

and  the  sum  of dollars,  costs  and  damages  ar\  the 

appeal,  was  awarded  against  the  appellant. 

TV.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[DE^f AND    OF    .TrDG^fEXT.]  ^ 

27Cal.  Code  rivil  Prnopfluro.  §  lOHT.  See,  as  to  l)()n(l  of  surety 
rorporation  nndor  tliis  sfftinn  as  aiiK'nclofl  in  ISSO.  Fox  v.  TTnlo  t^: 
NnrrroRs  Afinincr  Co..  07  Tnl.  PJ,'.',:  r.ntzfil  v.  Pojinlo.  0.'')  ifl.  .".OS, 

2SThl8  form  approvffi  in  Tliallieimor  v.  Trow,  1.T  Cn].  .?07,  400, 
holdlnp   the  complaint  snfRfiont   wliero   it  sets   out   tlio   liond    and 


^§  l-iT2-1476  FORMS    OF    COMPLAINTS.  780 

§  1472.  Action  by  nssigTiee.  To  enable  the  assignee  of  a 
judgment,  to  sue  on  tlie  appeal  bond,  lie  must  have  an  assign- 
ment of  the  bond.-*^  An  assignment  which  pur])orts  to  transfer 
to  the  assignee  all  the  right,  title,  and  interest  of  the  assignor 
in  the  undertaking,  "and  in  the  amount  thereby  secured,"  is 
broad  enough  to  enable  the  assignee  to  recover  for  use  and 
occupation  pending  the  appeal,  and  costs.^*^ 

§  1473.  Appeal  dismissed.  Where  an  appeal  is  taken  to  the 
Supreme  Court  from  a  judgment  by  iiling  notice  of  appeal  and 
undertaking,  and  the  appeal  is  afterwai-ds  dismissed  by  the 
Supreme  Court  for  failure  of  the  appellant  to  send  up  a  tran- 
script, the  sureties  are  liable  on  the  undertaking  on  appeal.^^ 
Where  an  appeal  is  withdrawn  or  dismissed  by  consent  of  botli 
parties,  without  being  called  to  a  final  hearing,  no  action  can 
be  maintained  on  the  appeal  bond.^-  Where  an  appeal  is  dis- 
missed on  motion  of  respondent,  based  on  written  consent  of 
the  appellant,  the  dismissal  operates  as  an  afhrmance  of  the 
judgment,  and  charges  the  sureties  on  the  undertaking  on 
appeal.^* 

§  1474.  Delivery.  In  an  action  on  an  undertaking  on  appeal, 
it  is  a  sufficient  averment  of  the  delivery  of  the  undertaking 
if  the  complaint  show^  that  it  was  filed  in  the  clerk's  office.^'* 

§  1475.  Execution,  issue  of.  An  averment  in  the  complaint 
in  a  suit  on  an  appeal  bond  that  execution  had  been  issued  on 
the  judgment  and  returned  unsatisfied  is  unnecessary.  The 
nonpayment  of  the  judgment  can  be  shown  without  issuing 
an  execntion.^'^ 

§  1476.  Frivolous  appeal.  Damages  for  a  frivolous  appeal 
ran  not  be  recovered  in  an  action  upon  the  undertaking  on 

alleges  affirmation  of  the  indement  appealed  from,  and  breach  of 
one  of  the  conditions  of  flie  bond,  in  that  the  costs  upon  appeal  are 
due  and  iinpaid. 

29  Moses  V.  Thome,  fi  Cal.  «7. 

soMurdoek  t.  Brooks.  RR  Cal.  .500. 

31  Ellis  v.  null.  2.1  Cal.  IGO;  see  Moffat  v.  Greenwalt,  90  Cal.  368; 
Peiper  v.  Peers.  OR  id.  42. 

32  Osborn   v.   Hendriekson,   C,   Cal.    17.5. 
•■'^.  Chase  v.  Berand.  20  Cal.  IH.S. 

34  Holmes  v.  Ohm,  2.3  Cal.  2aS. 

s.'^Tissot  and  Wife  v.  Darlin.ir,  0  Cal.  278;  Pleper  v.  BeerB,  98  Id. 
42. 


:bl  UNDERTAKINGS,    BONDS,    ETC.         §§    il..-l±SU 

appeal,  unless  tliey  have  been  specially  awarded  by  the  appellate 
court.^** 

§  1477.  Final  judgment.  It  need  not  be  alleged  that  the 
judgment  was  tiual.^' 

§  1478.  Judgment  reversed.  Where  an  appeal  bond  was  con- 
ditioned to  pay  the  judgment  appealed  from,  ii'  the  same  should 
be  athrmed,  and  it  appeared  that  the  judgment  appealed  from 
was  reversed,  the  conditions  of  .-uch  bond  were  not  broken, 
and  no  action  would  lie  thereon.^^ 

§  1479.  Judgment  aflBrmed.  Tnder  the  usual  undertaking 
on  appeal,  if  tlie  judgment  be  affirmed,  the  liability  of  the  surety 
accrues  only  after  an  affirmance  upon  that  appeal  of  the  then 
existing  judgment.  An  interlocutory  order  of  affirmance  re- 
serving leave  to  answer  and  litigate  further,  followed  by  new 
pleadings  and  a  new  judgment  upon  the  new  issue,  does  not 
render  the  sureties  liable.^^  An  undertaking  or  bond  was  con- 
strued to  relate  only  to  an  action  pending  against  the  obhgees 
at  the  time  it  was  given.^* 

§  1480.  Liability  of  sureties.  The  sureties  on  an  undertak- 
ing are  entitled  to  stand  on  the  precise  terms  of  the  contract, 
and  there  is  no  way  of  extending  their  liability  beyond  the 
stipulation  to  which  they  have  chosen  to  bind  themselves.'*^ 
And  a  judgment  against  the  principal  is  conclusive  against  the 
surety.'*^  But  an  undertaking  on  appeal  conditioned  for  the 
payment  of  what  the  judgment  creditor  ha.s  no  legal  right  to 
receive,  is  not,  as  to  such  condition,  binding  upon  the  sureties.'*^ 
The  sureties  on  an  appeal  bond  can  not  be  sued  until  the  judg- 
ment against  their  principal  is  in  a  condition  to  be  enforced  by 
execution.'**  So  long  as  there  is  an  order  of  court  in  force, 
staying  execution  on  the  judgment  against  a  party  who  had 
appealed  from  a  lower  court,  the  sureties  on  the  appeal  bond 
ran  not  be  sued.^'' 

t'l  TT.itliaway  v.  Travis.  ?,?,  Tal.  101. 

••'7  Siifliprlaiul  V.  ri'Plns.  22  TH.  01. 

i'<  riinsp  V.  RIos.  10  Tal.  ."17. 

•■'t' Potippnlmsfn   \.   Soflov.   P,   Kpvos,   150. 

■«"  T^e.'iPli   V.  Enrlrpfw.  r>1    Barb.  .'"•70. 

41  Tarpey  v.   SrhlllenbPrcpr.  10  r.nl.  nOO. 

42Piro  V.  Wobster.  14  Pal.  202:  TH  .\m.  Doo.  ft47. 

43  Whitney  v.  Allpn.  21  Cal.  2.^'^. 

44  Parnpll   v.   TTanrnrk.   48  Cal.   4.52. 
40  Td. 


§^    llbl-ilbi  I'UKAlJi    OF    CUiMl'LAlM'S.  78?^ 

g  1481.  Made  and  filed.  The  averuicilt  iu  the  secoud  alle- 
i'liliou  oi  the  above  lonu,  that  the  deleiidauts  made  aud  tiled, 
ete.,  is  sulUeieiit."*** 

§  1482.  Parties.  Where  defendant  executed  an  undertaking 
on  appeal  to  luisband  aud  Avil'e,  plaintill's,  an  action  on  tlie 
undertaking  may  be  maintained  in  tlxe  name  oI  husband  and 
wife.'*^ 

§  1483.  Rights  of  surety.  Whenever  any  surety  on  an  un- 
dertaking on  appeal,  executed  to  stay  proceedings  on  a  money 
judgment,  pays  the  judgment,  either  with  or  without  action 
after  affirmation  by  tiie  appellate  courts,  he  is  substituted  to 
the  rights  of  the  judgment  creditor,  and  is  entitled  tO'  control, 
enforce,  and  satisfy  such  judgment  in  all  respects  as  if  he  had 
recovered  the  same.^^ 

§  1483a.  Ultimate  and  probative  facts.  An  allegation  in  a 
complaint  in  an  action  against  the  sureties  upon  an  undertaking 
on  appeal  from  the  judgment  of  a  Justice's  Court  that  the 
defendant  in  the  action  in  that  court  "  appealed  to  the  Superior 
Court. "  from  the  judgment  is  a  sufficient  averment  of  the  ulti- 
mate fact  that  the  appeal  was  taken.  The  several  acts  per- 
formed in  taking  the  appeal  are  probative  facts,  and  should 
not  be  alleged.^^ 

§   1484.   The  same  —  for  costs  and  damages  on  an  arrest. 
Form  No.  391. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  heretofore  an  action  was  commenced  in  the  Superior 
Court  of  the  county  of ,  state  aforesaid  [or  other- 
wise state  the  court],  against  this  plaintifP,  wherein  the  said 
A.  B.  made  application  to  the  Hon.  C.  D..  judge  of  said  court, 
for  an  order  of  arrest  against   this  plaintiff,   whereupon    the 

defendants,  on  the   day  of   IS...  at 

,  executed  and  filed  with  the  clerk  of  said  court, 

for  the  benefit  of  this  plaintifP.  p-ursuant  to  law,  a  vn-itton  un- 
dertaking, of  which  the  following  is  a  copy  [copy  undertaking  1. 

4«  Gibbons  v.  Derhard,  ^  Bosw.  63.5;  but  compare  Pevey  r.  Sleight, 
1  Wend.  .518. 

47  Tissot  V.  Dnrlinp:.  9  Cal.  278. 
48nal.   Code  Civil  Procedure,   §  1059. 
♦9  Moffat  V.  Greenwalt.  90  CaL  368. 


783  UNDERTAKINGS,    BONDS,    ETC.  §    1485 

II.  That  thereupon,  pursuant  to  said  application  and  under- 
taking, an  order  was  made  by  the  judge  of  said  court  for  the 
arrest  of  this  plaintiff,  and  thereby  the  said  A.  B.  required  the 

sheriff  of county  to  arrest  this  plaintiff,  and  hold 

him  to  bail  in  the  sum  of dollars. 

III.  That  this  plaintiff  was,  on  the day  of , 

18.  .,  arrested  by  the  sheriff  of  the ,  under  said 

order,  and  was  unjustly  detained  and  deprived  of  his  libeity 

thereunder  for  the  space  of days,  to  his  damage 

dollars. 

IV.  That  such  proceedings  were  afterwards  had  in  said  ac- 
tion that  this  plaintiff,  on  the day  of ; , 

18..,  recovered  a  judgment  therein,  which  was  rendered  by 
said  court  against  the  defendant   A.  B.,  for dollars. 

V.  That  on  the    day  of    ,   18..,  at 

,  this  plaintiff  demanded  payment  of  said  judg- 
ment and  damages  from  the  defendant. 

VI.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Judgment.] 

S    1485.   On  an  undertaking,  on  release  from  arrest. 
Form  No.  392. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of    .  . .  ., ,   18..,  at 

,  under  an  order  of  arrest  duly  granted  by  A.  B., 

a  judge  of  the   court,  against  one  C.  D.,  in  an 

action  brought  in  the  said  court  by  the  plaintiff  herein  against 
the  said  C.  D.,  the  said  C.  D.  was  arrested  by  the  s'heriff  of  the 
county  of 

IT.  That  on  the    day  of    ,   18 .  . ,  at 

,  the  defendants  undertook,  in  the  sum  of 

dollars,  that  the  said  C  D.  should,  if  released,  render  himself 
at  all  times  amenable  to  the  process  of  the  court  during  the 
pendency  of  the  said  action,  and  to  such  as  might  be  issued  to 
enforce  the  judgment  therein,  a  copy  of  which  undertaking  is 
heroto  annexed,  marked  "Exhibit  A." 

TIT.  That  thereupon  the  sairl  C.  D.  \vi\B  released. 

TV.  That  on  the day  of 18...  judg- 
ment was  rnndorod  for  the  plainiifT  in  tlio  snid  action,  for 
dollars. 

V.  That  on  the  day  of  ,  18.  .,  oxe- 


§g    M8li-118i)  I'OUMS    OF    CU.Ml'LAl.NTS.  H^-^ 

cutiou  was  issued  agaiust  the  property  of  the  said  C.  D.,  uuder 
the  said  judgineiit,  but  the  sherill'  iiaa  made  returu  that  uo 
property  was  i'ouiid. 

\[.  Tliat  on  the day  of ,  18. .,  eixe- 

futitiu  was  issued  against  tlie  person  of  the  said  C.  D.,  under 
the  said  judgment,  but  the  sherilf  lias  nuide  return  that  lie 
could  not  be  found. 

VII.  That  the  said  judgment  has  not  been  paid,  nor  any  part 

thereof. 

[Demand  of  Judgment.] 
[Annex  copy  of  undertaking,  marked  "  Exhibit  A."] 

§  1486.  Attachments.  On  a  bond  given  to  an  officer  to  be 
relieved  from  arrest,  on  an  attachment  conditioned  to  appear 
at  the  return  day,  an  allegation  of  nonappearance  is  sufficient.''^ 
On  an  attachment  for  a  contempt  the  complaint  must  state 
plaintifi[''s  connection  with  the  attachment  proceedings,  and  to 
what  extent  he  was  aggrieved  by  the  acts  of  defendant.^^  That 
the  order  for  the  attachment  was  duly  granted  is  sufficient.'^^ 

§  1487.  Essential  averment  A  complaint  on  a  recognizance 
in  a  criminal  case  should  aver  that  the  same  was  filed  in  or 
became  a  matter  of  record  in  the  court  where  it  was  returnable.^^ 

§  1488.  Execution  must  be  averred.  In  an  action  upon  an 
undertaking  given  to  procure  a  discharge  from  arrest,  the  com- 
plaint is  bad  upon  demurrer  if  it  omits  to  aver  the  issuing  and 
return  of  an  execution  against  the  property  of  the  del)tor  ar- 
rested, and  also  the  issuing  and  return  of  an  execution  against 
the  person.''^    Execution  against  property  need  not  be  averred.'^'^ 

§  1489.  Execution  against  the  person.  The  averment  of  the 
recovery  of  the  judgment,  and  proceedings  thereupon  had  sup- 
plementary to  execution,  and  the  issuance  of  attachment  for 
contempt,  under  which  the  instrument  sued  upon  was  executed, 

is  sufficient.^^ 

f-o  Thomas  v.  Cameron,  17  Wend.  .59;  Hart  v.  Seixas.  21  irl.  40. 

f'l  Kaynor  v.  Clark,  7  Barb.  .>S1. 

r<2  Corlo  Civil  Profodiire,  §  4.')0. 

•'^3  Mendocino  County  v.  Lamar,  .30  Cal.  027.  The  complaint  need 
not  aver  that  a  demand  for  payment  was  made  on  the  sureties 
State  V.  Riesman,  12  Mont.  11. 

I-*  Oauntley  v.  Wheeler,  31  How.   Pr.  1.37. 

f55  Renick  v.  Orspr.  4  Bosw.  .3,S4:  Oropory  v.  Levy,  12  Barb.  610. 

56  Kelly  V.  McCormick,  2  E.  D.  Smith,  503. 


I 


785  UNDERTAKINGS,    BONDS,    ETC.         §§    14:9U-14D-^ 

§  1490.  Indictment  found.  Where  a  bail  boud  is  given  to 
appeal'  aud  answer  an  indictment,  tlie  complaint  must  aver  that 
the  indictment  was  fonnd  or  is  pending." 

§  1491.  Recognizance.  In  an  action  in  the  District  (Jourt 
upon  a  recognizance  of  bail  given  under  order  of  the  county 
judge  for  the  release  of  a  party  charged  with  larceny,  the  com- 
plaint need  not  aver  that  the  recognizance  was  certified  by  the 
Court  of  Sessions  to  the  District  Court,  nor  that  the  principal 
has  not  satisfied  the  judgment  of  forfeiture.  The  authorities 
that  such  certificate  and  averment  are  necessary  refer  to  pro- 
ceedings by  scire  facias  upon  a  record  of  the  recognizance  to 
which  the  accused  is  a  party.^^  The  complaint  alleged  sub- 
stantially that  G.  was  indicted  for  gaming  and  arrested,  and  the 
defendant  executed  the  recognizance  which  is  set  out:  that 
G.  appeared  at  the  first  term  of  the  court  thereafter  and  pleaded 
not  guilty,  and  case  continued  to  next  term,  at  which  time,  the 
case  being  called  for  trial,  Ct.  did  not  appear,  and  the  defend- 
ants, though  "called,"  did  not  produce  his  body;  that  the  court 
then  made  an  order  forfeiting  the  recognizance,  and  that  the 
defendants  did  not  produce  the  body  of  (1.  before  the  final 
adjournment  of  the  court.  Such  a  complaint  states  a  caiLse  of 
action. ^^ 

§  1492.  On  an  undertaking  for  costs  and  damages  on  attach- 
ment. 

Form  No.  S93- 

("TlTLE.l 

The  plaintiff  complains,  and  alleges: 

T.  That  heretofore  an  action  was  commenced  in  thi?  court  by 
the  defendant  A.  T?.,  for  the  recovery  of  money,  against  this 

rrpoople  v.  Smith,  :i  Pal.  271. 

P«  Poople  V.  Love.  10  Pal.  070. 

r'f>PPople  V.  Smith.  IS  Pal.  408.  An  action  on  a  forfoitod  ball 
hond  may  ho  broiifrlit  in  tlie  namo,  either  of  tlie  peoplo  or  of  the 
connty,  and  the  distrift  attorney  is  authorized  to  brincr  the  notion. 
Peoplo  V.  Do  Pclanfoni.  0.'?  Pnl.  400.  In  an  action  of  debt  on  a  re- 
f'opnizanop  at  common  law.  tho  utmost  strirtness  ovor  required  was 
that  tl)e  declaration  should  state  it  with  rortainty.  ptu'sninir  tho 
de8ori|>tion  in  tho  entry  of  roooijrnizanoo.  and  sho\dd  alloffe  in  wliat 
ronrt.  at  whose  snit.  and  for  what  .sum  tho  dofondnnts  arknowl- 
edpod  thomsolvos  oblifrntorl,  nlso  fhnt  it  shonld  bo  avorrod  tlmt  it  is 
a  roford.  and  statinc  tlio  bronoh  nooorflinjr  to  tho  torms  of  tho 
rofoirni'/nnoo.  Stato  v.  AfoOniro,  42  Minn.  27,  20;  see  Prior  v.  Bodrlo, 
40  :\rioli.  200. 

Vol.  1—99 


§  1493  FORMS  OF  COMi'LAINTS.  786 

plaiutili,  wlioroin  the  said  A.  13.  made  application  to  the  clerk 
of  the  said  court  for  a  writ  of  attachment  against  the  property 

of  this  plaintili',  wheretipon  the  defendant,  on  the    

day  of ,  18 .  . ,  at ,  executed  and  filed 

with  tlio  clerk  of  said  court,  for  the  benefit  of  this  plaintitt', 
pursuant  to  section  539  of  the  Code  of  Civil  Procedure,  a  writ- 
ten undertaking,  of  which  the  following  is  a  copy  [copy  of 
the  undertaking]. 

II.  That  pursuant  to  said  application  and  undertaking,  the 
clerk  of  said  court  issued  a  writ  of  attachment,  directed  to  the 
sheriff  of  said  county,  whereby  the  said  sheriff  was  required  to 
attach  and  safely  keep  sufficient  property  of  this  plaintiff  to 
satisfy  the  demand  of  the  said  A.  B.  in  said  action,  to-wit,  the 
sum  of dollars,  together  with  costs  and  expenses. 

III.  That  at  the  tune  of  the  issuing  of  said  attachment,  thia 
plaintiff  was  engaged  as  a  merchant  in  selling  hardw^are   at 

wholesale,  at  ISTo ,    street,  in  the  city  of 

,  in  said  county;  that  the  sheriff  of  said  county, 

pursuant  to  said  wTit  of  attachment,  entered  said  store  and 
removed  the  property  of  this  plaintiff,  and  thereby  the  business 
of  this  plaintiff  was  utterly  broken  up,  and  the  goods  attached 
became  unmarketable  and  useless,  and  this  plaintiff's  credit 

became  thereby  greatly  injured,  to  his  damage 

dollars. 

IV.  That  such  proceedings  were  had  in  the  suit  aforesaid 

that  this  plaintiff,  on  the day  of ,  IS. ., 

recovered  judgment  therein,  which  was  rendered  by  said  court 
against  the  said  A.  B.,  plaintiff  therein,  for  the  sum  of 
dollars,  his  costs  of  defending  said  action. 

V.  That  on  the   day  of    ,  18 .  . .  at 

,  this  plaintiff   demanded  payment   of  the   said 

judgment  from  said  A.  B. 

YI.  That  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Demand  of  Jttdgmekt.] 

§  1493.  Principal  and  surety.  "Wliore  the  surety  undertakes 
that  his  principal  shall  pay  any  judcfment  to  be  rendered,  etc., 
the  judgment  against  the  principal  is  conclusive  against  the 
surety.^^ 

«0Pico  V.  Webster,  14  Cal.  202:  73  Am.  Deo.  047.  An  action  on 
an  iindertakincr  in  attarlimont  may  be  mnintained  apainst  principal! 
and  sureties  jointly,  without  first  obtaining  judgment  against  the] 


787  UNDEKTAKINGS,    BONDS,    ETC.         §§    1494,    1495 

§  1494.  Statute,  how  pleaded.  lieference  to  statute,  as  in 
the  above  form,  is  sutiicieut.  Tlie  court  is  bound  to  take  notice 
of  a  public  statute.^^ 

§  1495.  On  an  undertaking  given  to  procure  the  discharge  of 
an  attachment. 

Form  No.  S94- 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18 . . ,   an 

attachment  against  the  property  of  C.  D.  was  issued  out  of  the 
court,  by  the  clerk  thereof,  in  an  action  com- 
menced by  A.  B.,  the  plaintiff  herein,  against  the  said  C.  D., 
the  defendant  herein,  to  recover  [state  what]. 

II.  That  afterwards,  on  the day  of , 

18.  .,  at ,  the  said  C.  D.  appeared  in  said  action, 

and  applied  for  a  discharge  of  said  attachment,  and  that  the 
defendants  herein,  E.  F.  and  G.  H.,  thereupon  executed  and 
delivered  to  this  plaintiff  a  written  undertaking  pursuant  to 
law,  a  copy  of  which  is  hereto  annexed  and  made  a  part  of  this 
complaint,  marked  "  Exhibit  A." 

III.  That  upon  delivery  of  said  undertaking  the  s<aid  attach- 
ment was  discharged  and  the  property  was  released,  and  that 

subsequently,  on  the day  of ,  18 .  . ,  said 

plaintiff  recovered  Judgment  against  the  said  C.  D.,  which  was 

rendered  in  said  action,  for dollars,  damages  and 

costs,  which  judgment  was  entered  and  docketed  in  the  ofllice 

principjal.  Mattler  v.  Brind.  2  Col.  App.  439.  In  an  action  on  such 
undertaking,  which  was  sijrned  only  by  the  sureties,  the  plaintiffs 
In  the  attachment  suit  .are  parties  havinj):  an  interest  in  the  con- 
troversy adverse  to  the  plaintiff,  and  may  T)e  properly  joined  with 
the  sureties  as  parties  defendant.  Hoskins  v.  White.  1.3  Mont.  70. 
In  an  artion  ajrainst  the  sureties  upon  an  attachment  bond,  the  com> 
plaint  do«>s  not  stat(>  fac-tg  snffloiont  whon  it  allejres  the  oxeontiou  of 
the  bond  by  the  i>rinr>ipals  witliout  allepin^r  that  the  surotios  joined 
In  the  exf'fution,  althoutrli  it  may  set  out  a  copy  thereof  in  tho  (»om- 
plalnt.  to  which  tho  naiiios  of  the  siireties  are  ai>p(Midod.  Seattle 
Crockerj'  Co.  v.  TTaley,  0  Wash.  St.  .302.  And  in  an  action  for  dam- 
ages on  such  bond,  an  allegation  in  the  complaint  that  the  defend- 
ants pave  a  bond  to  the  plaint  iff.  not  that  they  executed  one.  Is  in- 
sufficient to  state  a  cause  of  action.  Church  v.  Campbell,  7  Wash. 
St.  r>47.  Counsel  foes  for  defending  the  attachment  suit  can  not 
be  recovered,  In  the  .nbscncc  of  nn  nlleir:itinn  th:it  they  hnvc  boon 
actnnlly  pnid.     Elder  v.  Kntner,  07  C.nl.   100. 

«1  Ooelet  V.  Cowdrey,  1    TUkt.  1,''.2:  Shaw  v.  Tobias,  ?,  N.   Y.   188. 


§§  l-iyo,  liiiT  i-oitiis  oi'  (JOAii'LAiisTa.  788 

of  tlie  ck'ik  ui county,  on  the day  of 

,  18.  .,  and  that  stud  judyineut  has  not  been  paid. 

lY.  That  on  liic day  oI   ,  18.  .,  this 

plaintitr  demanded  ol  tlie  defendants  lierein  payment  of  said 
judgment,  which  was  by  eacli  and  all  of  them  refused. 

\'.  That  they  have  not  paid  the  same,  nor  any  part  thereof. 
[Demand  op  JudgmeiNt.J 
[Annex  copy  of  undertaldng,  marked  "  Exhibit  A."j*^^ 

§  1496.  Consideration.  Where  defendant  applies  to  the  court 
for  a  dischai'ge  of  the  attachment,  and  an  undertaking  is  exe- 
cuted by  D.  &  E.,  reciting  the  fact  of  the  attachment,  and  that 
"  in  consideration  of  the  premises,  and  in  consideration  of  the 
release  from  attachment  of  the  property  attached  as  above  men- 
tioned," they  undertake  to  pay  whatever  judgment  plaintilt' 
may  recover,  etc.,  and  the  court  makes  an  order  discharging 
the  writ  and  releasing  the  property;  in  suit  against  the  sureties 
on  the  undertaking,  the  complaint  need  not  aver  that  the  prop- 
erty was  a.ctually  released  and  delivered  to  the  defendant;  that 
as  the  consideration  for  the  undertaking  w^as  the  release  of  the 
property,  and  as  tlie  complaint  avers  such  release  in  consequence 
and  in  consideration  of  the  undertaking,  by  order  of  the  court, 
w^hich  is  set  out,  the  actual  release  and  redelivery  of  the  prop- 
erty to  defendant  is  immaterial,  the  plaintiff  having  no  claim 
on  it  after  the  undertaking  was  given  and  the  order  of  release 
made.^^  The  recitals  in  statutory  undertakings  given  in  such 
cases  have  the  same  effect  and  are  to  be  construed  in  the  same 
way  as  bonds  making  the  same  recitals,  and  are  conclusive  of 
the  facts  stated."^  And  a  complaint  in  an  action  on  an  under- 
taking given  under  section  540  of  the  Code  of  Civil  Procedure 
of  California,  which  alleges  that  the  same  was  given  to  release 
certain  property  taken  under  attachment,  is  sustained  by  proof 
of  an  nndertaking  which  recites  that  the  same  was  given  to 
prevent  a  levy.^^ 

§  1497.  Averments  —  issue  of  attachment.  It  need  not  be 
alleged  that  the  attachment  was  duly  issued,  if  it  be  shown. 

♦^2  For  a  form  of  complaint  in  snch  cases,  consult  Cmyt  v.  Phillips, 
7  Ahb.  Pr.  20.'i. 
63  l\rcMillan  v.  Dana,  18  Oal.  339. 

C4Td. 

65McXamara  v.  Haramersly,  1  West  Coast  Rep.  .560;  McCuteheon 
V.  Weston,  0.5  Cal.  37. 


789  UNDEETAKINGS,  BONDS,  ETC.    §§  1198,  1499 

that  it  was  issued  from  a  court  of  general  jurisdiction.^*^  And 
reciting  the  fact  of  a  levy  of  the  writ,  the  complaint  need  not 
aver  or  set  out  the  facts  which  authorized  the  issuing  of  the 
attachment.  The  recital  of  the  levy  estops  defendants  from 
denying  it,  and  the  levy  is  sufficient  without  averment  of  the 
previous  proceedings.^'^ 

§  1498.  Released  upon  delivery.  The  complaint  should  al- 
lege that  the  property  attached  was  released  upon  the  delivery 
of  the  undertaking.^*  A  failure  to  do  so  is  fatal,  and  the  defect 
may  be  taken  advantage  of  by  demurrer,  on  the  ground  that 
the  complaint  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action.^''  It  is  necessary  also  to  state  the  consideration  of 
the  undertaking;  a  mere  reference  to  the  condition  of  the  bond 
itself  is  insufficient.'^*' 

§   1499.   On  an  undertaking  given  in  claim  and  delivery. 
Form  iVo.  395. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  heretofore  tliis  plaintiff  commenced  an  action  in  the 

court,  against  A.   B.,   to   recover  possession   of 

specific  personal  property. 

II.  That  in  the  course  of  said  action  such  proceedings  of 
claim  and  delivery  under  and  pursuant  to  the  statute  were  had, 

that  on  the day  of ?  18  •  •  ?  the  defendants 

made  and  delivered  to  the  sheriff  for  the  use  of  this  plaintiff, 
pursuant  to  the  statute,  their  written  undertaking,  of  which 
the  following  is  a  copy  [copy  of  the  undertaking]. 

Til.  That  the  personal  property  referred  to  in  said  under- 
taking was  delivered  [or  relea.sed]  to  the  said  A.  B.,  defendant 
in  said  action,  pursuant  to  said  undertaking,  and  to  a  requisi- 
tion of  said  A.  B..  dofondant  in  said  action,  made  pursuant  to 
law,  and  said  undertaking  was  thereupon  delivered  to  this 
plaintiff. 

IV.  That  such  proceedings  were  afterwards  liad,  that  on  the 
day  of 1 8 .  . ,  a  verdict  in  the  Superior 

eeCniyt  v.  Phillips,  7  .\Mt.   T'r.  20.^,. 

«7MfMillan  v.  D.-ina,  IR  Cal.  :]P,0\  Orppory  v.  Tyevy.  12  Rarb.  CIO. 
«fl  Willi.-inison  v.  Blattan.  0  Cal.  .^>00. 
00  Id.;  .Tonnor  v.  Stroll,  r,2  Cal.  .'»04. 

Topalmpr  v.  Mclvln,  r,  Cal.  O.-.l.  SufTiPipnt  allpgatinn  of  demand 
made  upon  defendant.    See  Gardner  v.  Donnplly,  80  Cal.  .3G7. 


§§    1500-1503  FORMS    OF   COMPLAINTS.  790 

Court  of  tlio  eoimty  ol' waa  rendered  against  the 

said  A.  13.,  wherein  the  value  ol  tlie  said  property  was  found  to 

be    dollars,  whereupon  judgment  was  rendered 

against  A.  13.,  the  defendant  therein,  that  the  plaintill"  recover 

possession  of  said  property,  or  the  sum  of dollars, 

in  case  a  delivery  could  not  be  had. 

V.  That  the  defendant  has  not  returned  said  jjroperty,  nor 
otherwise  paid  or  satislled  said  judgment. 

VI.  [State  demand,  where  that  is  necessary.] 

VII.  That  this  plaintill'  thereafter  caused  execution  to  be 
issued  on  said  judgment  against  the  said  defendant,  A.  13.,  which 
execution  has  been  returned  wholly  unsatisfied. 

VIII.  That  the  defendant  has  not  paid  said  judgment,  nor 
any  part  thereof. 

[Demand  of  Judgment.] 

§  1500.  Action  by  assignee.  In  an  action  by  the  assignee 
of  an  undertaking  given  in  proceedings  of  claim  and  delivery, 
it  is  sufficient,  by  way  of  showing  plaintiff's  title,  to  allege  that 
the  undertaking  was  duly  assigned,  etc.,  to  him,  without  alleging 
that  the  judgment  in  the  action  was  also  assigned."^^  When  the 
action  is  brought  by  the  assignees  of  only  a  portion  of  the  prom- 
isees, there  is  a  defect  of  parties;  all  the  promisees  should  be 
represented.'^^  Where  a  replevin  bond  substantially  conforms  to 
the  act,  the  assignee  of  the  defendants  can  maintain  an  action 
upon  it.'^^ 

§  1501.  Consideration.  The  averment  of  delivery  and  release 
is  an  averment  of  consideration,  and  must  be  stated,  even  if 
the  undertaking  was  under  seal."^^  But  if  the  undertaking  re- 
cites the  performance  of  the  condition,  a  complaint  setting  fortli 
the  undertaking  need  not  also  aver  performance.'^^ 

§  1502.  Delivery  and  release.  It  must  be  averred  that  the 
property  was  delivered  or  released.'^^ 

§  1503.  Demand.  T^o  demand  need  be  averred  where  judg- 
ment was  returned  unsatipfiod.'^^ 

71  :\roranjrf'  v.  Miulpe.  (]  Abli.  Pr.  24.3. 

72Bow(loin  V.  Coleman.  0  Duer.  182;  3  Abb.  Pr.  431. 

73Wincrato  y.  P.rooks.  P,  Cal.  112. 

74  Xipkerson  v.  Clintt(>rton,  7  Oal.  .^68. 

7.'-.  :\rf>Mil].Tn  y.  D.nnn,  IS  Tal.  .330. 

7fi  Palmer  y.  Molyin,  C,  Cal.  rni ;  Williamson  v.  P.lfittan.  0  i'l.  .^0. 

77Bowdoin  v.  Coleman,  3  Abb.  Pr.  431;  Slack  v.  Heath,  1  id.  331. 


791  UNDERTAKINGS,    BONDS,    ETC.         §§    1504-1508 

§  1504.  Facts  authorizing  issue  of  process.  The  complaint 
returned  need  not  aver  that  it  was  taken  in  pursuance  of  the 
statute.  It  is  enough  that  the  instrument  set  forth  is  in  accord- 
ance with  the  statute.'^ 

§  1505.  Interest  awarded.  Upon  an  undertaking  given  in  an 
action  of  claim  and  delivery,  for  the  payment  of  a  fbced  sum, 
and  not  conditioned  for  the  return  of  the  goods,  interest  may 
be  awarded  upon  the  amount  of  the  penalty  from  the  date  of 
judgment  in  the  original  action;  because  after  the  recovery  the 
sureties  are  in  default,  and  the  neglect  to  pay  puts  them  in 
the  wrong.'^® 

§  1506.  Joint  bond,  Xo  recovery  can  be  had  on  a  bond  pur- 
porting to  be  a  joint  bond  of  the  principal  and  sureties,  but 
signed  by  the  latter  only.^°  Otherwise,  a&  to  undertakings 
under  our  system.  They  are  original  and  independent  contracts 
on  the  part  of  the  sureties,  and  do  not  require  the  signature 
of  the  principal.^^ 

§  1507.  Judgment  in  the  alternative.  The  complaint  should 
show  that  judgment  was  rendered  in  the  alternative.^^  Tt  must 
be  averred  that  neither  had  the  property  been  returned  nor  the 
specified  value  thereof,  as  fixed  by  the  judgment  in  the  original 
suit  paid.^^ 

§  1508.  Liability  of  sureties.  Whore  the  plaintill'  in  re- 
plevin gives  the  statutory  undertaking,  and  takes  possession  of 
the  property  in  suit,  and  is  afterwarfls  nonsuited,  and  judg- 
ment entered  against  him  for  the  return  of  tlie  property  and 
for  costs,  his  sureties  are  liable  for  damages  sustained  by  de- 
fendant, by  reason  of  a  failure  t/i  return  the  goods,  but  not 
for  damages  for  the  original  lakini:'  and  detention  —  tlie  value 
of  the  goods  not  having  b(>(>n  fouiul  by  Ibe  jury.^"*  If  an  under- 
taking in  an  action  in  replevin  commenced  in  a  Justice's  Court 
limits  the  liability  of  the  persons  who  execute  it  to  a  judgment 

78  McMillan  v.  Dana.  IS  Cal.  330;  Shaw  v.  Tobias,  3  N.  Y.  188; 
Croixnry  v.  Levy,  12  Barb.  010. 
'f>  Emerson  v.  Rootli,  rA  Rarb.  40. 
f-ofity  of  Sacramento  v.  Dunlap,  14  Cal.  421. 
«i  Id. 

RSNirkorson  v.  Cbattorson,  7  Till.  rA)8. 
M  Td. 
MOinira  v.  Atwood.  8  Cal.  440. 


ij§    ir)l)l)-ir)ll  FOIOIS    Ol'    COMPLAINTS.  793 

for  tho  ivturn  of  the  property  rendereel  by  the  justice,  and  such 
jiulginout  is  not  rendereil  in  tho  Justice's  Court  a  I'ecovery  can 
not  he  liad  upon  the  uiuK'i'taking,  even  if  on  appeal  such 
judgment  is  rendered  b}'  I  be  County  Court.^^  Otherwise, 
if  the  statutory  form  of  tlie  undertaking  is  folh)\ved.''^*'  A  judg- 
ment in  favor  of  the  ckd'endant  wiiich  does  not  award  him  a 
return  of  tho  property,  does  not  impose  any  liabihty  upon  the 
sureties.®'^ 

§  1509.  Reference  to  section  of  act.  A  comphlint  upon  an 
undertaking  given  umler  the  provisions  of  a  statute,  which  con- 
tains no  other  description  of  tlie  instrument  than  an  alk^gation 
that  it  corresponds  witli  the  provisions  of  such  statute,  is  de- 
fective.^* The  material  portions  of  tbe  undertaking  should  be 
set  forth;  but  it  will  bo  at  most  only  a  defect  of  form,  and 
objection  must  be  taken  by  demurrer.*^" 

§  1510.  Value  of  property.  The  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action  unless  it  aver  that 
the  value  of  the  property  Ava.^  found  by  the  jury,  and  that  an 
alternative  judgment  was  rendered.^° 

§    1511.   On  an  undertaking  given  in  injunction. 

For)n  No.  396'. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18 .  . ,  in  an 

action  brought  by  C.  D.  against  this  plaintiff,  an  injimction 
issued  out  of  this  court,  was  served  on  this  plaintiff,  enjoining 
him  from   [state  effect  of  the  injunction]. 

II.  That  upon  the  issuing  of  the  said  injunction,  the  de- 
fendants gave  an  imdertaking  required  by  section  529  of  the 
Code  of  Civil  Procedure  [or  by  law^],  of  w-hich  the  followdng 
is  a  copy  [copy  of  undertaking]. 

«5  Mitchum  v.  Stanton.  49  C&l.  302. 

86  Id. 

87  Id. 

88  Mills  V.  Gleason,  21  Cnl.  274. 

^f  Td.  As  to  manner  of  ploadinsr  in  suoh  cnses,  consult  Bow- 
doln  V.  rolcman.  P,  Abb.  Pr.  4?A:  Rtaolc  v.  TTpath,  1  id.  .'?81; 
Ptayner  v.  Clark,  7  Barb.  .^)S1:  Loomis  v.  Brown,  16  id.  ."2.1: 
Orosrory  v.  Levy,  12  id.  HIO;  Oonld  v.  Warner,  3  Wend.  54:  Pliillips 
V.   Prifp,  ,",  Man.   &•   S.   ISO;  Pnjre  v.   Earner,   1   Bos.   &  P.  381.  n. 

90  Clary  v.  Rolland,  2i  Cal.  147. 


1 


79o  U^^DERTAKINGS,    BONDS,    ETC.         §§    151.^-1511 

III.  That  such  proceedingji  were  had  in  the  said  action  that 
it  was  finally  decided  by  the  court,  and  thereby  adjudged,  that 
the  said  C.  D.  was  not  entitled  to  the  said  injunction. 

IV.  That  the  damages  sustained  by  this  plaintifl:,  by  reason 

of  the  said  injunction,  amounted  to  tlie  sum  of 

dollars,  and  interest  thereon  from  the  ......  day  of , 

which  the  court  on  that  day  awarded  to  this  plaintiff. 

V.  That  no  part  thereof  has  been  paid. 

[Demand  of  Judgment.] 

S  1512.  Damages.  Where  an  ofiieer  is  enjoined  from  paying 
over  money  in  his  hands,  legal  interest  only  can  be  recovered 
as  damages  for  its  detention,  in  an  action  on  the  injunction 
bond.^^  To  recover  damages  for  the  wrongful  issuing  of  the 
writ,  it  was  held  that  the  amount  paid  to  counsel  as  a  fee  to 
procure  the  dissolution  of  the  injunction  was  properly  allowed 
as  part  of  the  damages.^^  So  held  also  w^hen  an  order  to  show 
cause  why  an  injunction  fehould  not  issue  was  made,  though  the 
fee  was  paid  after  the  return  of  the  order  to  show  cause,  pro- 
vided the  retainer  was  before  that  date.^^ 

§  1513.  Damages  must  be  averred.  In  an  action  against 
the  sureties  on  an  injunction  bond,  the  condition  of  Avhich  is 
that  the  plaintiffs  in  the  suit  for  whom  the  sureties  undertook 
should  pay  all  damages  and  costs  that  should  be  awarded  against 
the  plaintiff  by  virtue  of  the  issuing  of  said  injunction  by  any 
competent  court,  and  the  complaint  did  not  aver  that  any 
damages  had  been  awarded,  it  was  held  that  such  complaint  is 
fatally  flefective.^^ 

§  1514.  Enjoining  payment  of  money.  M.,  a  sheriff,  had  in 
his  hands  money  belonging  to  L.,  which  he  had  collected,  on 
an  execution  in  favor  of  L.  &  D.,  against  S.  W.  &•  C.  commenced 
an  action  against  ^\.  &  L.,  and  others,  to  enjoin  M.  from  paying 
the  money  to  L.,  and  procured  a  preliminary  injunction,  which 
was  served  on  M.  alone,  but  L.  appeared  in  the  action  and 

»i  T.ally  v.  Wise,  2S  Tnl.  !>.?0. 

02  Ah  Thnio  v.  Quan  Wnn  ot  al..  .'?  r;il.  2^(\:  P.-irkor  v.  Boml,  5 
Mont.  1:  soe  Bnsfamonfp  v.  Stewart,  .''i.^.  Cnl.  11.''). 

osPrarlor  v.  r.rlni.  IP,  Cal.  .^►H.". 

04Tarpf'y  v.  RliillonborprT.  10  Tal.  .''.no.  The  nllepatinn  of  general 
dnmaffos  only  in  the  romplaint  in  an  action  on  an  inlnnrtion  hon'l, 
will  not  authorize  the  proof  of  any  spec'al  daniapres.  whloh  must  be 
alloprod  bo f ore  thoy  can  bo  ijrovcd.     Parker  v.  Bond.  5  Mont.  1. 


§§  1515-1519  roinis  of  complaints.  viii 

dei'oiKli'd.  The  injunction  bond  ran  to  all  the  defendants.  It 
was  held  that  L.  could  maintain  an  action  for  damages  on  the 
injunction  bond.^'^ 

§  1515.  Obedience  to  injunction.  Mere  obedience  upon  no- 
tice of  issuance  of  injunction  is  sufficient,  if  alleged."*^ 

§  1516.  Service  of  injunction.  An  allegation  that  injunction 
was  served  imports  a  legal  service."^ 

§  1517.  Statement  of  trial  on  injunction.  It  is  sufficient  to 
allege  that  an  injunction  was  granted  by  a  court  or  judge,  that 
issues  were  joined  and  judgment  rendered.'^** 

§  1518.  Who  may  join.  All  obligees  on  an  injunction  bond 
may  join  as  plaintiti's,  whether  their  several  claims  be  similar 
or  not.^^ 

§    1519.   On  a  bond  or  undertaking,  condition  only  set  forth. 

For>ii  No.  S97- 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of    ,   18 .  . ,  the 

defendant  covenanted  with  the  plaintiff,  under  his  hand  and 
seal,  to  pay  to  the  plaintiff  the  sum  of  [state  the  penalty] . 

II.  That  said  obligation  was  upon  the  express  condition  there- 
under written,  that  if,  etc.  [set  forth  the  words  of  the  condi- 
tion], the  said  obligation  was  to  be  void,  otJieiAvise  to  remain 
in  full  force. 

III.  [Allege  breaches  as  in  other  cases.] 

[Demand  of  Judgment.] 

eSLally  v.  Wise.  28  CaL  .539. 

96  Cumberland  Coal  and  Ii-on  Co.  v.  Hoffman  Steam  Coal  Co.,  15 
Abb.  Pr.  78. 

97  Loomis  v.  Brown,  16  Barb.  325. 

98  1(1. 

90  1(1.  A  complaint  which  contains  two  counts,  one  for  dnma.sos 
apainst  the  plaintiff  in  an  injunction  suit,  and  the  other  against  the 
sureties  upon  the  injunction  bond,  but  which  fails  to  aver  either 
malice  or  want  of  probable  cause  in  the  issuance  of  the  writ  of  in- 
junction, fails  to  state  any  cause  of  action  against  the  plaintiff  in 
the  injunction  suit.  Ascvado  v.  Orr.  100  Cal.  203.  The  plaintiff  in 
the  injunction  suit  is  not  liable  upon  the  injnnction  bond,  if  he  was 
not  a  party  to  the  undertaking.  Id.;  Ghiradelli  v.  Bourland,  32  Cal, 
588. 


795  UNDERTAKIXGS,    BONDS,    ETC.  §§    1520-ld:<)3 

§    1520.   Breach  of  condition  —  the  basis  of  the  action.  The 

breach  of  the  couditious  of  a  penal  bond  constitutes,  in  fact, 
the  basis  of  the  plaintiff's  action,  and  it  should  be  assigned  with 
certainty  and  particularity,  so  as  to  sliow  the  injury. ^"*^  In 
general,  it  is  sufficient  tio  allege  the  breach  in  the  temis  of  the 
condition  of  the  bond.^^^ 

§  1521.  Notice.  Xotice  to  the  representative  and  a  demand 
upon  him  are  not  always  essential. ^^^  It  is  not  necessary  to 
aver  notice  to  the  sureties,  nor  to  state  who  was  the  applicant 
for  the  order  for  prosecution.^"^ 

§  1522.  Parties.  In  an  action  on  a  l)ond  or  written  under- 
taking, there  can  be  no  constructive  parties  Jointly  liable  ^nth 
the  proper  obligors. ^*^'* 

§  1523.  Penal  bonds.  In  actions  on  penal  bonds,  the  com- 
plaint must  specifically  assign  the  breaches  for  which  the  action 
is  brought ;^"^  thus,  on  a  bond  conditioned  that  a  party  shall  pay 
on  a  certain  contingency  or  on  demand,  or  for  an  uncertain 
sum,  breaches  must  be  assigned.^"^  Also  a  bond  given  on  a  plea 
of  a  title  before  a  justice. ^"'^  But  not  a  bond  payable  in  money 
by  installments.^"^  Xor  to  bonds  payable  in  money  only,  which 
may  be  brought  under  actions  on  written  instruments. 

100  CJampbell  v.  Ptronfr,  Ilempst.  2G5;  Dixon  v.  United  States,  1 
Brocli.  177;  Postmaster-General  v.  Cross,  4  Wasli.  C.  C.  :32(5. 

101  Berger  v.  Williams,  4  ^McLean,  .577;  Gorman  v.  Lenox,  15  Pet. 
115. 

102  People  V.  Rowland.  .'>  Barb.  449. 

103  People  V.  Faleoner.  2  Sandf.  81. 

104  Lindsay  v.  Flint.  4  Cal.  S8. 

10.^  Baker  v.  Cornwall,  4  Cjil.  !.">:  Mnnro  v.  Alaire,  2  Cai.  319; 
Riim.'sey  v.  Matthews,  1  BiVd).  242;  Burnett  v.  Wylie,  Hemiist.  197; 
and  see  Hazel  v.  Wnters.  .S  Craneh  C.  C.  082;  Western  Baidc  v. 
Sherwoo<l,  29  Barb.  .^83. 

ion  Nelson  v.  Boslwick,  .'  Hill,  .''.7:  40  Am.  Doc  .''.lo.  In  n  doclara- 
tlon  in  debt  on  a  jicnal  bond  jiiiyable  to  an  individual,  there  must  l>e 
an  averment  of  flio  nf)np:iym('nt  of  the  pcTiMlty,  lint  it  is  olhcrwise 
In  eases  of  offioial  bonds,  payable  to  the  state.  State  v.  Phares.  24 
W.  Va.  fi."7;  Ripff  v.  Parsons,  29  id.  .'»22. 

107  Patterson  v.  Parker,  2  Hill,  .".98. 

lOfi  Harmon  v.  Dedriok,  3  Barb.  192;  Spauldinff  v.  Millard,  17  Wend. 
831. 


§§    152-i-1526  FORMS    OF    COMPLAINTS,  7i)G 

§    1524.   On  aibitratiou  bond  —  refusal  to  comply  with  award. 
I'^oKJii  No.  jyi'. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  in  consideration  of  certain  questions  in  difTerence 
between  plaintilT  and  defendant,  and  of  a  ceiiiiin  bond  executed 

by  this  plaintiff  to  the  defendant,  the  defendant,  on  the 

day  of ,  18. .,  at ,  made  and  deliv- 
ered to  the  plaintiff  an  undertalcing,  conditioned  to  abide  the 

award  of upon  said  question  of  dilference;  a  copy 

of  which  undertaking  is  hereto  annexed,  marked  "  Exhibit  A." 

II.  That  said undertook  the  arbitration  thereof 

on  the day  of ,  18 . . ,  at , 

and  duly  published  their  award  in  writing  upon  the  matter  sub- 
mitted, and  delivered  the  same  to  the  parties,  and  thereby 
awarded  that  the  defendant  should  [state  terms  of  the  aw^ard], 
a  copy  of  which  award  is  hereto  annexed  as  a  part  of  this  com- 
plaint, marked  "  Exhibit  B." 

III.  That  the  plaintiff  duly  performed  all  the  conditions  of 
said  bond  and  of  said  award  on  his  part. 

IV.  That  on  the day  of ,  18 , , ,  notice 

of  said  award  was  given  to  the  defendant. 

V.  That  the  defendant  has  not  [state  the  breach], 

[Demand  of  Judgment.] 
[Annex  copies  of  Exhibits  "A"  and  "  B."]  ^^ 

§  1525,  Award  of  payment  at  a  future  day.  Where  the  award 
directs  payment  at  a  future  day,  and,  pursuant  to  authority  given 
in  the  submission,  requires  the  debtor  to  give  security  for  its 
pa)'ment,  an  action  lies  upon  the  arbitration  bond,  upon  the 
refusal  to  give  security,  -vvithout  waiting  till  the  time  of  pay- 
ment."o 

§   1526.   Assignment  of  breach  for  revoking-  arbitrator's  power. 

Form  No.  399. 
That  thereafter,  and  before  tbo  matters  aforesaid  were  finally 
passed  upon  by  said  arl)itrator,  the  defendants,  by  writing  un- 
der their  hands  and  seals,  delivered  to   revoked 

the  powders  of  the  arbitrators,  and  notified  said   

that  they  would  not  abide  by  the  award  of  said  arbitration. ^^^ 

109  For  antlioritifs  upon  forms  of  complaints  in  such  actions,  see 
Myers  v.  Dixon,  2  Ilall,  4.5G;  M'Kinstry  v.  Solomons,  2  .Johns.  57; 
S.  C.  1.3  id.  27. 

"0  Bayne  v.  Morris,  1  Wall.  97. 

Ill  Where  the  defendant  revolved  tlio  nrbitrntor's  powers  before 


797  UNDEETAKINGS,    BONDS,   ETC.         §§    1527,    1528 

9   1527.  On  a  bond  for  the  faithful  accounting  of  an  agent. 

Form  No.  400. 
[Title.] 
The  plamtilf  complains,  and  alleges: 

I.  That  on  the    day   of    ,   18 .  . ,   at 

,  it  was  agreed  between  this  plaintiff  and  one  A.  B., 

that  the  said  A.  B.  should  solicit  and  collect  subscriptions  for  a 
[state  what],  and  that  the  plaintiff  should  pay  to  the  said  A.  B. 
[state  terms  of  payment]  for  such  service,  and  that  the  said  A. 
B.  should  faithfully  account  to  this  plaintiff'  for  all  [property] 
intrusted  to  him,  and  should  faithfully  pay  over  all  moneys 
collected  by  him  under  authority  of  said  agreement. 

II.  That  in  consideration  of  said  agreement,  the  defendant 
made  and  delivered  to  the  plaintiff  an  undertaking  in  writing, 
under  his  hand  and  seal,  conditioned  for  the  faithful  perform- 
ance by  said  A.  B.  of  the  tenns  of  said  agreement  on  his  part; 
a  copy  of  which  undertaking  is  hereto  annexed,  marked  "Ex- 
hibit A." 

III.  That  thereafter  the  said  A.  B.  did  solicit,  collect,  and 
receive  divers  sums  of  money,  in  the  course  of  his  employment 
under  the  aforesaid  agreement,  which  sums  he  has  failed  to 
render  up,  account  for,  or  pay  over  to  the  plaintiff. 

IV.  That  on  the   day  of   ,  18.  .,  at 

,  the  plaintiff  requested  the  said  A.  B.  to  account 

for  and  pay  over  to  the  plaintiff  such  sums,  and  thereupon  de- 
manded payment  from  him  of  the  same,  according  to  the  terms 
of  said  undertaking. 

V.  That  no  part  tbereof  has  been  paid. 

[Demand  of  Judgment.] 
[Annex  copy  of  "Exhibit  A."] 

§  1528.  Essential  averments  —  request  —  sale  and  accounting. 
Ecquest  is  a  condition  precedent  in  a  bond  to  account  on  re- 
fiuept.^i2  fi^fi  j^  gj,]g  j^^^g^  |-,g  ayerred.  with  a  refusal  to  account 
therefor.''^ 

tho  Piibmlsslnn  wns  nrfiinlly  mndo  n  nilo  of  miirt,  tlio  plaintiff 
should  assipn  tlie  rrvrifalinn  as  a  broach— not  tho  nonperfornianrp 
of  tho  fiwanl.  Frots  v.  Frots.  1  Cow.  .^^-:  Willi.ntn  v.  Madon.  0 
Wpnd.  240 

i'2D,nvl8  V.  Cary.  1.'  Q.  B.  41R:  R.  O..  00  Enjr.  Toni.  T..  410. 

J13  Wolfe  V.  Lnystor,  1   ITall.  101. 


§§  1529-1532  roKMS  of  complaints.  798 

§   1529.   On  a  bond  for  the  fidelity  of  a  clerk. 
Form  No.  401. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  tlio    day  of    ,   18..,   at 

,  the  plaiutiir  being  then  about  to  employ  one  A. 

B.  as  a  clerk,  the  defendant  covenanted  with  the  plaintiif,  under 
his  hand  and  seal,  that  if  the  said  A.  B.  should  not  faithfully  per- 
form his  duties  as  a  clerk  to  the  plaintiif,  or  should  fail  to  ac- 
count to  the  plaintiff  for  all  moneys,  evidences  of  debt,  or  otlier 
property  received  by  him  for  the  use  of  the  plaintiif,  the  de- 
fendant would  pay  to  the  plaintiff  whatever  loss  he  might  sus- 
tain by  reason  thereof,  not  exceeding dollars. 

II.  That  between  the day  of ,  18.  ., 

and  the day  of ,  18. .,  the  said  A. 

B.  received  moneys  and  other  property,  amounting  to  the  value 

of dollars,  for  the  use  of  the  plaintiff,  for  which 

he  has  not  accounted  to  him. 

[Demand  of  Judgment.] 

§  1530.  Application  of  bond.  Such  a  bond  applies  to  the 
honesty  of  the  clerk,  and  not  to  his  ability,  and  the  sureties  are 
not  responsible  for  loss  arising  from  a  mere  mistake;^^^  urdess 
the  clerk  conceals  deficiencies,  and  for  this  purpose  makes  false 
entries  in  the  books. -^^^ 

§  1531.  Consideration.  Appointment  to  office  and  its  emol- 
uments is  a  sufificient  consideration  to  support  the  obligation  of 
sureties  for  fidelity.^^® 

§  1532.  Faithful  discharge  of  duties.  In  a  suit  on  a  bond 
to  secure  faithful  performance  of  varioiLS  duties  of  secretary  and 
treasurer  to  a  private  association,  if  the  defendant  who  was  a 
surety  (the  principal  being  dead),  craved  oyer  of  the  bond  and 
conditions,  and  pleaded  general  performance,  it  is  suflRcient.^^'^ 
Where  an  inhabitant  of  a  town  acted  as  justice  of  the  peace, 
and  gave  a  bond  with  sureties  for  the  faithful  discharge  of  his 
duties  as  justice,  the  fact  that  no  law  required  him  to  give 

114  T^nion  Bank  v.  Clossey,  10  .Tohns.  271. 

115  Id. 

iif' United  States  v.  Linn.  15  Pet.  200. 

117  Jackson  v.  Rundlet,  1  Woodb.  &  M.  381. 


799  U^'DERTAK1^■GS,  BONDS,   ETC.        §§    1533-1535 

bond  would  not  affect  the  validity  of  the  instrument  tui  a  coin- 
mou-law  obligation.^^* 

§   1533.   On  an  official  bond. 

Form  No.  402. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant,  on  the day  of , 

18. .,  at ,  made  and  delivered  his  bond  or  writing 

obligatory,  sealed  with  his  seal,  of  which  the  following  is  a  copy 
[copy  bond]. 

II.  [Set  forth  breach.] 

[Demaxd  of  Judgment.] 
The  cause  of  action  accrues  when  consequential  injury  has 
followed  official  nonfeasance  or  misfeasance,  and  not  before.^^^ 
It  is  necessary  to  allege  and  prove  the  existence  of  conditions 
and  circumstances  requiring  some  official  action  on  the  part 
of  the  officer,  and  that  the  injury  sought  to  be  redressed  was  in- 
flicted while  the  officer  was  so  attempting  to  act,  or  on  account 
of  his  failure  to  act  at  all.^^  Sureties  on  an  official  bond  are 
liable  only  for  a  breach  of  official  duty  committed  by  their 
principal  during  the  term  of  office  for  which  the  bond  was  given, 
and  the  fact  that  the  breach  occurred  during  such  term  must  be 
alleged  in  the  complaint.^^^ 

§   1534.   Alleg-ation  of  breach  —  for  neglect  of  sheriff  to  levy. 
Form  No.  403. 

That  said  sheriff  did  not  execute  said  process,  but  although 
there  was  then  within  his  county  real  and  personal  property  of 
which  he  might  have  levied  the  moneys  thereby  directed  to  be 
levied,  he  neglected  and  refused  so  to  do,  whereby  the  plaintiff 
lofit  his  said  debt. 

§    1535.   Allegation  of  breach  —  for  neglect  to  sell  after  levy. 
Form  No.  404. 

That  the  saifl  sheriff  by  virtue  thereof  on  the day 

of   Ir'viofl   on   the  poods  of  said    A.   V>..  of  the 

11R  Wlllifimson  V.  Wonlf.  .'?7  Ala.  20S. 

iinpooplo  V.  rmmor,  1.'  Cn].  ^~,^,•.  riolLind  v.  Mrrumbor.  irl.  ?'^^^. 

120  TTawkins   v.   Thomas.   3   Tnrl.    App.    300. 

'21  TTnbort.  v.  Yonnp.  CA  Tal.  212:  and  spo  Kolhim  v.  Clark.  07  X.  Y. 
ftOO;  Buffalo  ronnty  v.  Van  Rioklo.  10  Xeb.  f^a?;  Supervisors  v.  Al- 
fnrrT.  Of)  Miss.  0.3;  7  Am.  St.  Tlep.  r,.'',7:  State  v.  Knrtzoborn.  7S  Mo. 
98. 


^§    looli-looi)  rOEilS   OF   COMPLAINTS.  8UU 

value  oi' dollaxs;  but  he  neglected  to  advertise 

and  sell  the  goods  so  levied  ou  by  him  as  aforesaid;,  and  no  paxt 
oi'  the  moneys  directed  to  be  collected  on  the  relator's  said 
executiou  has  been  received  by  the  relator. ^^ 

§    1536.   Allegation  of  breach  —  for  neglect  to  return. 
I'orin  No.   405. 

Who  by  virtue  thereof,  on  the cUiy  of , 

levied  on  the  goods  of  said  A.  13.,  of  the  value  of 

dollars,  but  althongh  more  than  sixty  days  elapsed  after  its  de- 
livery to  him  and  before  this  action,  wholly  neglected  and  failed 
to  make  return  of  said  execution,  and  no  part  of  the  raonoys 
directed  to  be  collected  thereby  has  been  received  by  ilie  relator. 

§   1537.   Allegation  of  breach  of  treasurer's  bond. 

Form  No.  406. 

That  said  treasurer  between  the day  of , 

and  the day  of ,  18.  .,  received  various 

sums  of  money,  as  such  treasurer,  amounting  to  about  the  sum  of 

dollars   [being  a  part  of  the  tax  raised  in  his 

county  for  the  year ] ,  and  that  he  fraudul&ntly 

and  in  breach  of  his  trust  converted  and  appropriated  to  his 
own  use  said  sum.^^^ 

§  1538.  Bond — official.  In  an  action  upon  a  sheriff's  bond, 
the  declaration  did  not  charge  the  sheriff  with  the  breach  of  his 
duty  in  the  execution  of  any  wTit  or  process  in  which  the  real 
plaintiff  was  personally  interested;  but  with  a  neglect  or  refusal 
to  preserve  the  public  peace,  in  consequence  of  which  the  plain- 
tiff suffered  great  w-rong  and  injury  from  the  unlawful  violence 
of  a  mob,  it  was  held,  on  motion  in  arrest  of  judgment,  that  the 
declaration  did  not  show  a  cause  of  action.^^* 

§  1539.  Breach  must  be  assigned.  In  a  declaration  upon  a 
covenant  for  general  performance  of  duty,  if  no  In'cach  be  as- 
signed, or  a  breach  which  is  bad,  as  not  being,  in  point  of  law, 

]22Ponplo  V.  Ten  Eyck,  l.S  Wend.  448.  This  form  may  bo  used 
whore  writ  was  doliverod  to  the  deputy.     See  §  l.'i4^. 

12.3  Where  the  condition  of  a  treasurer's  bond  was  that  he  "  should 
keep  a  separate  account  in  the  bank  of  A.,  as  sueh  treasurer,  of  all 
moneys,"  etc..  it  was  held  that  a  breach  misht  be  assicned  by  necra- 
tivincr  the  words  of  the  condition,  though  only  nominal  d.nmajros 
eonld  be  recovered  under  it.  Albany  Dutch  Church  v.  Vedder,  14 
Wend.  1fi.-». 

124  South  V.  Maryland,  IS  How.  (V.  S.)  .'',00. 


801  UKDEKTAKIXGS,    BONDS,    ETC.         §§    1540,    15-il 

\vithin  the  scope  of  the  covenant,  the  defect  is  fatal,  even  after 
verdict.^^  Where,  in  an  action  upon  a  sheriff's  bond,  the 
declaration  did  not  charge  the  sheriff  with  a  breach  of  his  duty 
in  the  execution  of  any  writ  or  process  in  which  the  real  plain- 
tiff was  personally  interested,  but  with  a  neglect  or  refusal  to 
jtreserve  the  public  peace,  in  consequence  of  which  the  plain- 
tiff suffered  great  wrong  and  injury  from  the  milav^ul  violence 
of  a  mob;  the  declaration  did  not  set  forth  a  sufficient  cause  of 
action  against  the  sheriff  and  his  sureties^-^ 

§  1540.  Change  of  parties  on  bond.  Where  the  principal 
causes  his  name  to-  be  stricken  from  a  bond  without  thedr  knowl- 
edge or  consent,  it  is  void  as  against  the  sureties.^-"  But  the 
name  of  an  obligor  may  be  erased  and  a  new  obligor  inserted 
by  consent    of  all  parties,  without  making  the  bond  void.^^ 

§  1541.  Collector's  bond.  Tlie  district  attome)^  of  a  county 
has  the  authority,  of  his  own  volition,  with  or  without  iastruc- 
tions  from  the  controller  of  state.  County  Court,  or  the  board  of 
supervisors  of  a  county,  to  bring  an  action  upon  the  official  bond 
of  the  tax  collector  of  a  county. ^^  In  an  action  of  covenant 
lirought  on  a  penal  bond  given  to  account  for  public  moneys, 
if  tlie  breach  assigned  is  the  nonpei'formance  of  the  condition 
tbe  count  will  be  adjudged  bad  on  demurrer.  The  breach 
assigned  must  be  the  nonpayment  of  the  penalty. ^^°  All  the 
money  due  on  a  tax  collector's  bond  may  be  recovered  in  a  single 
action  in  the  name  of  the  people  of  the  state,  although  part 
of  tbo  money  thus  due  may  belong  to  the  county  and  part  to 
the  state. ^•''^  The  complaint  in  an  action  on  a  tax  collector's 
bond  need  not  aver  that  the  taxes  charged  on  the  assessment- 
roll  wore  legally  assessed. '-^^     The  .securities  on  the  official  bond 

12R  Minor  V.  Merohants'  Pnnk  of  .Mcxiindri.-i.  1  Vvi.  4(;,  07:  rom- 
(.are  Snow  v.  .Tohnson.  1   Minn.  4.S. 

i2«Soiitli  V.  Staff  of  MaiTland.  1R  How.  (V.  R,)  .^00. 

127  >rillor  V.  Stewai-t,  n  Wlieat.  702:  Hunt  v.  Adams,  0  Mass.  .">21 ; 
Mnrtin  v.  Thoma.s.  24  TIow.  <V.  S.)  .'?1.''.. 

12«  S7>eako  v.  T'^nitod  Statos.  0  Pranfli.  28.  The  quosfion  wliethor 
the  addition  of  a  surety,  witliout  the  l<nowIedpe  of  tlie  formor 
Bnrf'ty,  avoids  the  bond,  was  raised  in  r)"\('alo  v.  T.onfr,  4  Cranch,  GO. 

i2f.  PpojiIp  v.  I.ove.  25  Cal.  r>2f). 

IS"  T'nited  States  v.  Brown.  1  Paine  422;  see  §  l.'")2.'?,  ante. 

131  Pf'oplo  V.  Lovo.  2i')  Tal.  520. 

182  Id. 

Vol.  I— 101 


^§   1542-15-iG  roRMs  of  comi'Laints.  802 

vi  a  shoi'ilV  and  cx-officio  collector  oi"  tiic  revenue  ai'e  liable  for 
an  act  oi'  the  latter  in  collecting  an  asserisnLcnt  oi'  ta^xes  on  prop- 
erty not  subject  to  tajcatiou.^^^ 

§  1542.  Constable.  An  action  on  the  official  bond  of  a  eon- 
stable  lies  primarily  upon  breach  of  the  condition  of  the  bond, 
whether  the  injury  for  which  suit  is  brought  be  a  trespass  or  not, 
the  result  of  the  nonfeasance  or  misfeasance  of  the  officer. '•'' 
in  aji  action  against  sureties  on  a  constable's  bond,  iji  addition 
to  the  allegation  that  the  otiicer  did  not  levy  tlie  amount  of  an 
execution,  to  take  the  body  of  the  defendant,  it  must  be  alleged 
that  the  defendant  had  property  which  might  have  been  levied 
upon,  or  that  his  body  could  have  been  found.^^^ 

§  1543.  Constable's  deputy.  In  the  absence  of  statutory  pro- 
visions as  to  the  appointment  of  deputies  by  constables,  the 
common-law  rule  applies,  and  constables  may  act  by  deputy,  in 
the  exercise  of  their  ministerial  functions. ^^^ 

§  1544.  Copy  of  bonds.  If  a  copy  of  the  bond  sued  on  is  set 
out  in  the  complaint,  an  answer  denying  its  execution,  which 
is  not  verified,  admits  its  due  execution.^^'^ 

§  1545.  County  assessor.  In  suit  upon  the  official  bond  of 
a  county  assessor,  who  had  received  a  certificate  of  election, 
given  bond,  and  entered  upon  his  duties,  neither  the  principal 
nor  the  sureties  can  deny  the  official  character  of  the  assessor. 
They  are  estopped  by  the  bond.^^^ 

§  1546.  Date  of  bonds.  Where  the  date  of  a  surety  bond 
is  subsequent  to  the  appointment  of  the  principal  to  office,  the 
declaration  should  allege  that  the  money  collected  by  the  prin- 

133  state  V.  Rhaoklott,  .^7  Mo.  280. 

134  Van  Pelt  v.  Littler.  14  Cal.  101. 

13.")  Lawton  v.  Imnn,  0  Wend.  233.  An  action  to  recover  damages 
for  a  breach  of  the  condition  of  the  official  bond  of  a  constal)Ie, 
by  reason  of  his  illejral  seizure  and  conversion  of  the  property  of 
the  plaintiff,  under  a  Avrit  issued  against  the  property  of  third  per- 
sons, is  properly  brought  against  the  constable  and  the  sureties  on 
his  official  bond.     Bell  v.  Peck,  104  Cal.  8.5. 

130  .Tobson  V.  FenneH.  ?,.'>  Oal.  711. 

137  Sacramento  Co.  v.  Bird.  31  Tal.  06. 

138  People  V,  .Jenkins,  17  Cal.  500. 


803  UNDERTAKINGS,    BONDS,    ETC.  §§    1547-1550 

cipal  remained  in  his  hands  at  the  time  when  the  surety  bond 
was  executed.^^'-* 

§  1547.  Defect  in  bonds.  If  there  is  a  defect  in  an  official 
bond  by  the  failure  of  tlie  principal  to  place  a  seal  opposite  his 
name,  the  defect  will  not  defeat  a  recovery  thereon  as  against 
the  sureties,  if  the  defect  is  suggested  in  the  complaint.^'**^ 

§  1548.  Delivery.  In  a  suit  on  a  bond,  delivery  must  be  al- 
leged; but  the  omission  to  allege  it  can  only  be  taken  advantage 
of  by  demurrer;  it  is  cured  by  verdict.^"*^  The  production  of  the 
bond  in  court  by  the  obligee  is  sufficient  evidence  of  its  de- 
livery.^^ 

§  1549.  Execution  of  bonds.  If  the  complaint  on  an  official 
bond  avers  the  due  execution  of  the  same  by  both  principal 
and  sureties,  and  the  answer  takes  issue  on  the  averment,  and 
the  verdict  and  judgment  are  for  plaintiff,  the  judgment  will 
not  be  disturbed  on  appeal  upon  the  judgment-roll,  on  the 
ground  that  what  purports  to  be  a  copy  of  the  bond  annexed  to 
the  complaint  does  not  contain  the  signature  of  the  principal.^^-'^ 
If  sureties  on  an  official  bond  sign  with  an  express  understand- 
ing Avith  tbe  principal  in  the  bond,  that  certain  otber  persons 
shall  sign  as  sureties,  and  that  unless  such  other  persons  sign, 
it  shall  not  be  delivered,  a  delivery  of  the  1)ond  to  the  obligee, 
without  the  signature  of  such  other  persons,  does  not  render  it 
invalid  a,'^  to  the  sureties  who  do  sign.^'** 

8  1550.  For  selling  homestead.  A  complaint  against  a  sherifT 
and  his  sureties  for  selling  under  execution  the  homestead  of 
plaintiff,  which  sets  out  that  the  sheriff  was  in  possession  of  a 
oert.airi  execution  against  the  plaintiff.  I?ichard  Roe,  under  which 
ho  sold  the  property,  and  averring  damages  in  the  sum  of  two 

•  i-^n  T'nltf'd  States  v.  Linn,  1  How.  (V.  R.)  104.  Tn  an  artion  of  debt 
on  a  bond  to  a  .Indcro  of  jirobate  the  doclaration  is  defeotivo  if  it 
doos  not  allfiro  the  preriso  day  on  which  tlie  defendants  became 
bnnnd.    Mooro  v.  Lothrop.  ?."►  Me.  .Wl. 

i^nSfirTamonto  Co.  v.  Bird.  .•?!  Pal.  00;  soc  Poopb'  v.  Iluson.  7K 
Tal.  1.-4. 

141  Oarria  v.  fc  Saf ni.stccrni,  4  Pal.  244. 

i42Tirn..'iii  V.  TTalloy.  4R  Oal.  010;  State  v.  Oonntv  Commissioners, 
21   Fla.  1. 

H'»  Mondorino  To.  v.  Morris.  .''.2  Cal.  14.''>. 

U4  Tidball  v.  nallov,  4S  Tal.  010. 


§§    1551-1553  FORMS    OF    COMPLAINTS.  bUi 

ihoutiaml  (.loUiirs,  the  value  oi'  the  properly,  is  mauliieieut,  as 
the  same  does  not  state  laets  sullieieut  to  eoiistitute  a  cause  oi' 
aetion,  for  the  sheritfs  deed  conveys  notliing  if  tlie  property  was 
a  homestead."'' 

§  1551.  Judgment.  In  an  action  against  the  principal  and 
sureties  on  an  official  bond,  the  court  sliould  first  tix  the  amount 
of  the  defalcation  of  or  recoveiT  from  the  former,  and  then  pro- 
ceed with  a  separato  judgment  against  each  of  the  sureties  for 
the  full  anu)unt  for  which  he  has  made  himself  liable,  and 
tJiat  each  shall  be  satisfied  by  the  collection  or  payment  of  such 
defalcation,  or  recovery  and  costs."**  A  judgment  for  damages 
against  an  officer  for  official  delinquency,  which  remains  unsatis- 
fied, will  not  prevent  a  subsequent  action  on  the  official  bond."^ 

§  1552.  Liabilities  of  obligors.  After  a  bond  has  been  re- 
ceived and  acted  on  by  the  county  officers,  the  obligors  are  liable 
as  if  it  had  been  approved;  but  this  liability  applies  only  to  the 
duties  properly  appertaining  to  his  office  as  such  and  not  to 
the  duties  belonging  to  a  distinct  office,  with  the  execution  of 
which  he  may  be  charged. ^^*  If  the  penal  sum  is  changed  in  an 
official  bond  after  the  principal  obligor  has  executed  the  same, 
and  he  then  forwards  it  for  approval,  he  is  liable  on  the  bond  a.s 
approved.^^^  The  liability  is  several  as  w^ell  as  joint,  unless 
expressed  to  be  only  joint,  and  the  plaintifp  may  sue  one  or  both 
sureties.^^^  The  sureties  on  a  sheriff's  bond  are  not  lia.ble  for 
his  acts  or  omissions  in  the  service  of  a  precept  which  by  law 
he  was  not  authorized  to  serve.^^^ 

§  1553.  Marshal's  bond.  In  an  action  on  a  marshal's  bond, 
it  is  not  necessary  to  aver  that  the  penalty  has  not  been  paid. 
The  nsual  averment  of  the  breach  of  the  condition  is  sufficient. ^^^ 
To  an  action  on  a  marshal's  bond,  for  taking  insufficiont  security 
on  a  replevin  bond,  a  plea  in  bar  that  a  levy  was  made  on  goods, ' 

145  Kendall  v.  Clark.  10  Cal.  IS. 

146  People  V.  Ilnoney.  29  Cal.  <>42. 

147  state  V.  Kmttschnitt  4  Nev.  178. 

148  People  V.  Edwards.  9  Cal.  286. 

149  People  T.  Kneeland,  .^1   Cal.  288. 
ir.o  >Toran£re  v.  ]\Tud.cP.  fi  Abb.  Pr.  243. 
if.i  Dane  v.  Oillmore.  .51  Me.  544. 

^.^2  Rpen-ino'  v.  Taylor.  2  McLean,  362;  compare  Hazle  v.  Waters, 
3  Cranrh  C.  C.  420. 


SOi 


UNDEKTAKiXGS,    BOXDS,    Ei'U.  §^    155xH559 


and   chattels,  lands,  and  tenements,  sufficient  to  satisfy   the 
judgment,  is  good.^^^ 

§  1554.  Ministerial  duties.  It  is  only  for  a  breach  of  his 
duty  in  the  execution  of  his  ministerial  offices,  that  the  sheriff 
and  his  sureties  are  liable  upon  his  bond.^^'*  He  should  not  be 
required  to  come  prepared  to  justify  his  whole  official  conduct. ^^^ 

§  1555.  Misjoinder  of  caiises  of  action.  A  cause  of  action  on 
an  official  bond  against  the  principal  and  his  sureties  can  not 
be  united  with  a  cause  of  action  for  damages  against  the  princi- 
pal alone.^^^ 

§  1556.  Nonpayment  of  money.  Declaring  on  a  sheriff's  bond 
for  the  nonpayment  of  money  received  by  him  for  military  fines, 
it.  is  not  necessary  to  name  who  paid  the  money  to  him,  or 
issued  the  warrants  on  which  it  was  collected;  a  reference  to  the 
statute  makes  the  breach  certain  enouofh.^^'^ 

8  1557.  Notice.  Xo  averment  of  notice  to  the  defendant  is 
requisite  in  the  complaint,  where  the  matters  assigned  as  breaches 
lie  as  much  in  the  knowledge  of  one  party  as  the  other. ^^^ 

§  1558.  Receiver's  bond.  The  sureties  on  a  receiver's  bond 
are  only  bound  from  the  date  of  the  bond;  and  if  the  bond 
bears  date  some  months  after  the  official  term  of  the  receiver 
commenced,  the  declaration  is  defective  if  it  omits  to  show  tho 
receipt  of  the  money  after  the  date  of  the  bond,  and  before  the 
expiration  of  his  official  term.^^^  A  declaration  wliicli  charged 
a  receiver  of  public  moneys  with  not  paying  over  moneys  which 
came  into  his  hands  the  day  after  his  bond  expired,  is  bad  on 
demurrer.  ^^'^ 

S  1559.  ftequest  or  demand.  Wbero  a  county  treasurer  has 
embezzled  and  converted  money  of  the  county  it  is  not  neces- 

iM  Soflam  r.  Taylor.  3  ^frLean.  ."ViT. 
i'"»  South  V.  Mar>-Iand.  18  How.  (TT.  S.)  ^iWi. 
'^•5  reopio  V.  Rnisli.  r,  Wend.  4r>4:  Poopk'  v.  RuaseJl.  4  id.  .^70. 
I'-fiStato  V.  KnDtsr'Iuiitt.  4  Nov.  ITS. 
i''7  Peoi.le  v.  Rnish,  C,  Wend.  4.^4. 

i^s  PpoplP  V.  Edwards,  f»  Tal.  202:  seo  Tondinson  v.  Rowe,  Hill  & 
D.  Rupii.  410. 

'•'•"  T'nitod  States  v.  SpenctT,  2  ISIcLean.  405. 
ICO  Id. 


g§    lJGU-lJG:.i  F01O18    OF    COiUrLAliNTS.  bUo 

sary  for  the  tiui)ervisurs  to  make  a  request  or  demand  bel'ore 
a  suit  on  his  boud.^"^ 

i  1560.  Retaining  commissions.  In  an  action  on  an  official 
bond  of  a  county  treasurer,  it  the  complaint  avers  only  a  breach 
by  a  failure  of  the  treasurer  to  keep  tlie  money  in  the  county 
safe,  and  by  a  withdrawal  of  the  same  and  conversion  to  his 
own  use,  a  recovery  can  not  be  had  for  a  failure  of  the  treasurer 
to  pay  into  the  treasury  his  commissions  retained  on  payments 
made  to  the  state.^"^ 

§  1561.  Retaining  money.  An  averment  in  a  complaint  on 
a  county  treasurer's  official  l)ond  that  he  received  money  be- 
longing to  the  county  and  retains  it,  and  refuses  to  deliver  it  to 
his  successor  in  office,  is  a  sufficient  averment  of  a  breach  of  its 
conditions. ^^'^ 

§  1562.  Treasurer's  bond.  A  complaint  in  an  action  against 
a  treasurer,  for  a  failure  to  pay  his  successor  money  which  came 
into  his  hands,  should  allege  that  it  remained  in  his  hands  at 
the  expiration  of  his  term.^^  And  where  the  treasurer  has  paid 
over  to  his  successor  the  amount  found  due  against  him,  he  is 
still  liable  for  all  moneys  actually  received  by  him  as  such 
treasurer,  and  by  mistake  not  charged  to  him  in  such  account- 
jj^g  165  rpj^g  liability  of  the  sureties  continues  till  he  has  ren- 
dered a  just  and  true  account  of  such  moneys. ^^® 

161  Supervisors  of  Allegany  v.  Van  Cainpen,  3  Wend.  48. 

162  Sacramento  County  v.  Bird,  31  Cal.  66. 

163  Mendocino  County  v.  Monis,  32  Cal.  145. 

164  Pickett  V.  State,  24  Ind.  366. 

165  .Tefferson  County  v.  Jones,  19  Wis.  .51. 

166  Id.  Where  the  complaint  shows  that  the  defendant  received 
money  as  treasurer,  and  failed  to  deliver  it  to  his  successor  in  office, 
it  is  not  necessai-y  to  allege  that  the  money  belonged  to  the  county 
whose  officer  he  was.  Crook  County  v.  Bushnell,  15  Oreg.  169. 
In  an  action  by  a  county  against  the  sureties  on  an  official  bond  of 
the  county  treasurer,  to  recover  money  for  which  the  treasurer 
was  in  default,  an  averment  that  tlie  county  commissioners  com- 
plied with  all  the  re(iuirements  and  conditions  of  said  bond,  and 
the  requirements  of  all  acts  of  the  legislature  pertaining  to  the  offi- 
«-ial  bonds  of  the  <-onnty  officers  is  sufficient,  jind  the  complaint 
need  not  specifically  aver  a  i:»erformance  of  the  several  acts  required 
to  be  performed  by  the  county  commissioners.  White  Pine  County 
V.  Herrick,  19  Nev.  34. 


807  UNDERTAKINGS,    BONDS,    ETC.      §§    1563,    1563a 

§  1563.  Trespass,  A  complaint  iu  au  aeliou  agaiust  a  slieritl: 
and  his  sureties,  for  au  alleged  trespa^ss  of  tlie  sheriff,  shoidd 
allege  that  the  bond  was  the  sheriff's  official  bond,  and  set  out 
enough  of  its  contents  to  show  that  those  who  signed  it  were 
bound  to  indemnify  parties  injured  by  sheriff's  malfeasance.-^^' 
In  trespass  for  taking  goods,  against  a  sheriff'  who  justified 
under  a  writ  of  attachment  against  a  third  person,  he  called 
as  a  witness  his  deputy,  who  stated  that  he  served  the  attach- 
ment, and  related  certain  conversation  between  himself  and  the 
plaintiff'.  On  cross-examination,  he  stated  that  "  he  was  deputy 
sheriff,  and  under  bonds  to  the  sheriff'."  Whereupon  plaintiff 
moved  to  strike  out  his  testimony  on  the  ground  of  interest; 
it  was  held  that  the  motion  was  properly  denied,  as  from  the 
answer  it  was  not  certain  that  the  character  of  his  bonds  was 
such  as  to  make  him  interested. ^^*  If  the  complaint  in  an  action 
against  a  sheriff  and  his  official  bondsmen  alleges  only  a  cause 
of  action  against  him  as  a  trespasser,  and  against  his  sureties  as 
signers  of  the  bond,  and  not  otherAvise,  there  is  a  misjoinder 
of  causes  of  action. ^^^  A  complaint  in  an  action  against  a  sheriff 
and  his  sureties  for  an  alleged  trespass  of  the  sheriff,  which 
merely  avers  that  the  sureties  are  the  securities  on  his  official 
bond,  and  that'  the  same  was  duly  filed,  executed,  and  recorded, 
does  not  state  a  cause  of  action  on  the  bond.^'^°  In  an  action 
on  a  replevin  bond  the  defendant's  liability  is  limited  to  the 
damage  sustained  by  a  failure  to  return  the  property.^'^^ 

5  1563a.  Bond  of  executor  or  administrator.  In  an  action  un- 
der section  1571  of  the  California  Code  of  Civil  Procedure,  to 
recover  on  the  bond  of  an  executor  or  administrator,  for  liis 
neglect  or  misconduct  in  the  proceedings  in  relation  to  a  sale 
of  the  real  estate  of  the  deceased,  the  complaint  must  show  that 
the  plaintiff  ha,«;  been  actually  flamaged  by  the  sale.  And  where 
the  complaint  contains  no  averments  with  respect  to  any  pro- 
ceedings in  the  Probate  Court  subsequent  to  the  confirmalion 
of  the  sale,  and  affirmatively  shows  that  Hie  land  was  sold  for 
its  full  value,  no  damage  is  alleged,  and  ilic  plaintiff  will  be  loft 
to  his  remedy  in  thn  Probata-  Court. ^"^^ 

i«7r,lilrarflplll  v.  Bonrland,  ,^2  Pal.  r,H?i. 
ifi«Towdy  V.  Ellis.  22  P.-il.  r,.-0. 
iRf>r;hirardplll  v.  ■Ronilaud.  .'!2  fal.  TiSH. 

170  Td. 

171  TTiint  V.  Rohlnson.  11  Tal.  202. 
n2Welhe  v.  Rtatliani.  CT  Tal.  24r>. 


§    loGob  iOKAiti    Oi-    fU-Ui'LAiXTS.  808 

§  1563b.  Guardian's  bond.  It  is  held  by  the  Colorado  court, 
Uiai  it  io  not  esseiiliai  to  a  recovery  against  sureties  on  a  guard- 
ian's bond,  in  an  action  against  them  on  behali'  of  the  minors 
for  breaches  of  its  conditions  by  the  guardian,  tJiat  the  guardian 
bo  made  a  party  to  the  action,  or  that  a  judgment  should  first 
have  been  obtained  against  him  wiiich  he  had  failed  to  satisfy. 
The  instrument  itself  sti})ulat.es  for  the  faithful  discharge  by  tlie 
guardian  of  the  obligations  imposed  on  him  by  statute,  which 
provides  that  it  may  be  put  in  suit  against  all  or  any  one  of 
the  obligors  to  the  use  and  benefit  of  any  person  entitled  by 
breach  thereof.^'^^  Proceedings  for  accounting  or  orders  of  court 
need  not  precede  an  action  for  a  breach  of  the  bond.^'^^ 

1T3  Gebhard  v.  Smith,  1  Col.  App.  342. 
174  Id. 


CHAPTEE  X. 

ox  WARRANTIES  OF  CHATTELS. 

S    1564.   Warranty  of  title. 

form  No.  407. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18..,   at 

. ,  the  defendant  sold  to  the  plaintiff   [state  the 

article  sold],  for dollars. 

II.  That  by  said  contract  of  sale  it  was  understood  by  the 
])laintift'  and  the  defendant  to  be,  and  it  was  a  part  of  the  terms 
and  consideration  of  said  contract  of  sale,  that  the  defendant 
liad  the  lawful  right  and  title  to  so  sell,  and  to  transfer  the 
ownership  of  said  goods  to  the  plaintiff. 

III.  That  the  defendant  had,  in  fact,  no  right  or  title  to  sell 
or  dispose  of  said  goods. 

IV.  That  one  E.  F.  then  was  the  owner  of  said  goods,  and 

afterwards,  on  the   day  of   ,  18. .,  he 

demanded  possession  of  the  same  from  tlic  plaintiff;  and  the 
plaintiff  was  compelled,  and  did  then  deliver  them  up  to  E.  F., 
and  they  were  wholly  lost  to  the  plaintiff. 

Y.  That  by  reason  of  the  premises  the  plaintiff  was  misled  and 

injured,  to  his  damage dollars. 

[Demand  of  Judgment.]^ 

§  1565.  Sales  by  auctioneer.  There  seems  to  be  a  doubt 
whether  in  an  ordinary  sale  of  goods  by  auction,  an  auctioneer 
has  any  right  or  aiitliority  to  warrant  goods  sold  by  him,  in  tlio 
absence  of  any  oxpross  aniliority  from  his  principal  to  do  so.  and 
without  proof  of  some  known  and  ostnblishod  usago  of  trade 
from  which  an  anthority  cnn  bo  implied. ^     It  mav  bo  accepted 

1  For  the  provisions  of  tlie  California  Civil  Code  rolatinjr  to  -war- 
ranty of  chnttols.  see  §§  1 70.3-1 77S. 

2Rpp  T'pton  V.  Suffolk  County  Mills,  11  Cnsh.  (Mass.)  .'SSO;  Blood 
V.  Frencb,  0  Gray,  107. 

102 


^§    l.')(Ul-15(')!)  ri)H.MS    OF    ruMl'LAlNTS.  810 

generally  iiri  the  true  doctrine  tJiat  they  are  special  agents  hav- 
ing authority  to  sell,  and  not  to  warrajit,"' 

§  1566.  Effect  of  general  warranty.  A  general  warranty  does 
not  extend  to  dol'ects  inconsistent  tiierewith,  of  which  the  buyer 
was  then  aware,  or  whiih  were  then  easily  discernible  by  him 
without  the  exercise  ot  peculiar  skill,  but  it  extends  to  all  other 
defeets.* 

§  1567.  Implied  warranty  of  title.  Where  the  vendor  of 
chattels  in  his  possession  gives  a  written  bill  of  sale  containing 
no  covenant  of  warranty,  there  is  an  implied  warranty  of  title.** 
The  vendor  in  possession  wan'ants  the  goods  by  implication;  un- 
less at  the  time  he  expressly  disavows  an  intent  to  do  so.®  But  if 
out  of  the  possession  of  the  vendor,  in  the  absence  of  fraud,  the 
buyer  takes  at  his  own  risk.'^  The  use  of  a  certain  name  in  a 
sale  note  for  the  goods  sold  is  a  warranty  that  they  bear  that 
name.^  The  complaint  need  not  aver  the  vv'arranty,  for  this 
implied  warranty  is  an  inference  of  law.^ 

§  1568.  Judicial  sale.  Upon  a  judicial  sale,  the  only  war- 
ranty implied  is  that  the  seller  does  not  know  that  the  sale  will 
not  pass  a  good  title  to  the  property.^*^ 

§  1569.  Measure  of  damages.  In  an  action  upon  an  implied 
warranty  of  title  to  personal  property,  where  a  judgment  in 
trover  has  been  obtained  aga.inst  the  purchaser,  the  measure  of 
damages  is  the  damages  and  costs  recovered  l)y  the  true  owner 
with  interest  thereon.^^  But  where  the  goods  are  replevied 
of  the  buyer,  their  value  alone,   and   not   damages   for  their 

3  The  Monte  Alle.cre,  9  Wheat.  6ir>.  G47:  see  Dent  v.  McGrath,  3 
Bush  (Ky.).  174;  see,  also,  Cal.  Civil  Code.  §§  ITG.!,  1708;  Court  v. 
Snyder,  2  Ind.  App.  440. 

4  Cal.  Civil  Code,  §  1778. 

5  Miller  v.  Van  Tassel.  24  Cal.  458;  Gross  v.  Kierslci,  41  id.  111. 
6Millor  V.  Vnn  Tnsspl,  24  Cal.  4.58;  Rew  v.  Barber,  :i  Cow.  272. 

7  3  Kent  (.".th  ed.),  478;  McCoy  v.  Artcber,  3  Barb.  323;  Edlcli  v. 
Criin.  10  id.  44r>. 

8  Flint  V.  Lyon,  4  Cal.  17. 

9  Van  Rantv.  Tl.  2S7. 

10  Cal.  Civil  Code.  §  1777. 

11  Blasdale  v.  Babcocli,  1  Johns,  617;  Armstrong  v.  Percy,  5  Wend. 
535. 


811  WARRANTIES    OF    CHATTELS.  §§    lo70-loT-l 

detention,  nor  attorney's  fees  paid  by  liiiu  ior  defending  tiie 
title,  is  held  to  be  tlie  measure  of  damages.^^ 

§  1570.  Money.  On  an  exchange  of  money,  each  party 
thereby  warrants  the  genuineness  of  the  money  given  by  him." 

§  1571.  Skill  —  implied  warranty  of.  When  a  skilled  laborer, 
artisan,  or  artist  is  employed,  there  is  on  his  part  an  implied 
warranty  that  he  is  of  skill  reasonably  competent  to  the  task 
he  undertakes.^* 

S  1572.  Waiver  of  warranty.  The  complaint  in  an  action 
to  recover  the  price  of  a  machine,  sold  \vith  a  warranty,  under 
an  agreement  that  the  continued  use  of  the  machine  by  the 
vendee  should  be  regarded  as  a  waiver  of  the  warranty,  need 
not  allege  that  the  machine  corresponded  with  the  warranty 
if  it  avers  the  continued  use  of  it  by  the  vendee. ^^ 

§  1573.  Warranty  of  title.  If  the  seller  has  possession  of 
the  article,  and  sells  it  as  his  own  and  not  as  agent  for  another, 
and  for  a  fair  price,  he  is  understood  to  warrant  the  title. ^*^ 
In  New  York,  a  warranty  of  title  is  implied  from  an  unqualified 
sale.^^  And  it  extends  to  the  right  to  the  use  of  the  thing  sold, 
c.  g.,  a  patented  article.^*  But  it  arises  only  in  cases  where  the 
vendor  is  in  possession. ^^  In  every  sale  of  personal  property, 
except  a  judicial  sale,  there  is  implied  warranty  of  title  or  of 
peaceable  possession.'^ 

§  1574.  Warranty  by  agent.  An  agent,  whether  general  or 
special,  who  is  authorized  to  sell  personal  property,  is  presumed 
to  possess  the  power  of  warranting  its  quality  and  condition, 

12  Id.:  but  see  Lewis  v.  Peake,  7  Taunt.  1.52;  see,  also,  rolhenms 
V.  Herman,  4.5  Cal.  573. 

13  Cal.  Civil  Code.  §  1807. 
14:5  Robinson's  Pr.  707. 

15  Brafr;:  v.  Ramberffer.  23  Ird.  10S. 

i«2  Kent's  Com.  478;  Irwin  v.  Thompson.  27  Kan.  043:  Pnulsen 
v.  Hall.  .30  id.  .30.5;  Edperton  v.  .AliHiels.  00  Wis.  121. 

17  Carman  v.  Tnide,  25  How.  Pr.  440:  Rcianton  v.  Clark.  .30  Raib. 
273:  and  see  Sweetman  v.  Prinee,  20  X.  Y.  224. 

i><  Cannan  v.  Tnide.  25  Ih.w.  Pr.  440. 

1!' Scianton  v.  Clark,  .30  Parb.  273;  Bechet  v.  .'>initIiors,  IS  .Tones 
A-  Rp.  .381. 

20  Porte  V.  T'nited  Statr-s.  Dev.  57:  ppp  T'nclcott  v.  riiitcd  St.Ttea, 
Id.  103;  see  Civil  Code,  §  1705;  Gross  v.  Kierskl,  41  Cal.  111. 


^§     i;)T5-1578  i'OKMS    OF    COMI'LAINTS. 


81» 


unless  Uie  eoutrai-y  appear.-^  So  an  agent,  employed  to  sell 
negotiable  paper,  may,  iii  the  absence  of  any  limitation  oi  his 
authonty,  represent  it  as  a  business  note,  and  valid.^^ 

§  1575.  Warranty,  on  sale  of  written  instrument.  One  who 
sells  or  agrees  to  sell  an  instrument  purporting  to  bind  any  one 
to  the  performance  of  an  act,  thereby  wai-rants  that  he  has  no 
knowledge  of  any  facts  which  tend  to  prove  it  worthless,  sucli 
as  the  insolvency  of  any  of  the  parties  thereto,  where  that  is 
material,  the  extinction  of  its  obligations,  or  its  invalidity  for  any 
cause. ^ 

§  1576.  Warranty  by  seller.  One  who  sells  or  agrees  to  sell 
personal  proi)erty,  knowing  Unit  the  buyer  relies  on  his  advice 
or  judgment,  thereby  warrants  to  the  buyer  that  neither  the 
seller  nor  any  agent  employed  by  him  in  the  transaction  knows 
the  existence  of  any  fact  concerning  the  thing  sold  which  would, 
to  his  knowledge,  destroy  the  buyer's  inducement  to  buy.^ 

§   1577.   On  warranty  of  quality. 

Form  No.   408. 

[Title.] 
The  plaintilf  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18 . . ,   at 

,  the  defendant  warranted  a  steam  engine  to  be 

in  good  order,  and  thereby  induced  the  plaintiff  to  purchase  the 
same  of  him,  and  to  pay  to  him dollars  therefor. 

II.  That  the  said  steam  engine  was  not  then  in  good  order, 

whereby  plaintiff  was  damaged  in  the  sum  of    

dollars. 

[Demand  of  Judgment.] 

1* 

§  1578.  Assignment  of  breach.  The  agreement  to  take  back 
property,  sold  under  a  warranty  of  soundness,  but  wliicli  proved 
unsound,  or  whereby  defendant  agreed  to  pay  a  sum  of  money 

21  Nelson  v.  Cowinp,  6  Hill,  336;  Tice  v.  Gallop,  5  N.  Y.  S.  C.  51: 
Palmer  v.  Hatch.  46  I\Io.  .'>8.5;  Wait  v.  Borne,  123  N.  Y.  592;  Talmage 
V.  Bierhanse.  103  Ind.  270;  see  Brynnt  v.  Moore,  26  Me.  84;  45  Am. 
Dec.  96;  Docker  v.  Fredericks,  47  N.  J.  L.  409;  Cooley  v.  Perrine, 
41  Id.  322;  .32  Am.  Rep.  210. 

22  Fprjruson  v.  Hamilton,  35  Barb.  427.  442;  Fenn  v.  HaiTison,  4 
T.  R.  177;  but  see  Lipscomb  v.  Kitrell.  11  Humph.  2.56. 

23Cal.  Civil  Code.  §  1774:  see  .Tames  v.  Yeager,  86  Cal.  184;  Ken- 
dall V.  Parker,  103  id.  324;  Harvey  v.  Dale,  96  id,  160. 
24  Cal.  Civil  Code,  §  1707. 


813  WAEKAXTIES    OF    CHATTELS.  §^    1o;9-1j8'^ 

in  coiisi deration  of  said  unsoundness  and  consequent  rescission 
oi  saie,  does  not  require  assignment  of  a  special  brcacli,  witinn 
th,e  meaning  of  the  Code.^ 

§  1579.  Averment  of  warranty.  A  general  averment  of  war- 
ranty is  sufficient,  as  tliat  tlie  seller  warranted  the  article  to  be 
of  good  quality .^^ 

§  1580.  Caveat  emptor.  That  the  buyer  must  take  care  or 
be  on  his  guard,^  is  a  leading  maxim  of  the  law  relating  to  the 
contract  of  sale;  and  its  application  is  not  affected  by  the  cir- 
cumstances that  the  price  is  such  as  is  usually  given  for  a  sound 
commodity.2*  jf  the  vendor  warrants  the  quality  of  the  articles 
he  sells,  he  is  bound  to  deliver  them  of  the  stipulated  quality, 
and  the  examination  and  selection  of  some  of  the  articles  by  the 
vendee  when  they  are  delivered,  does  not  amount  to  a  waiver  of 
the  contract.^ 

§  1581.  Damages  on  breach.  Under  the  forms  of  pleading 
at  common  law,  the  vendee  of  chattels  sold  with  a  warranty  of 
title  could,  on  a  breach  of  the  warranty,  recover  damages  in 
assumpsit,  or  he  might  sue  in  an  action  on  the  case  for  deceit, 
if  there  had  been  deceit,  as  well  as  warranty  of  title;  but,  in  the 
first  case,  he  must  aver  specially  tliat  the  dci^endant  warranted 
his  title  to  the  property,  and  that  a  breach  of  the  warranty  had 
occurred,  and  in  the  latter,  that  the  defendant  falsely  or  fraudu- 
Ifntly  represented  himself  to  be  the  owner  of  the  proi)erty,  and 
that  he  knew  his  representations  were  false. ■'''^ 

§  1582.  Damages,  measure  of.  AVhcn  the  vendor  of  personal 
property  is  sued  for  a  failure  of  title,  the  measure  of  damages 
is  the  price  paid  ])y  the  plaint iiT.^^ 

2S  stone  V.  Watson,  .37  Ala.  279. 

2«  Hoo  V.  Sanl)orn.  21  N.  Y.  .'')r.2;  78  Am.  Der.  10.3. 

27  iTolt.  nO:  Co.  T>itt.  100.  a:  2  Inst.  714;  Broom's  Max.  OO.T:  an<l  soo 
Uinsflil(  1-  V.  .TcllilTp,  0  T)aly.  409;  Eaton  v.  Wnldron,  22  X.  Y.  Snnp. 
."►Oj;  Kln-Iier  v.  Conrad,  0  Mont.  101;  IS  Am.  St.  Rpp.  7.31. 

s**  2  Steph.  Com.  .320;  Cro.  .Tar.  2;  TTarpous  v.  Stone,  r^  X.  Y.  R*^: 
2  \Voofrs  Lpct.  2.11:  2  Kent's  Com.  478:  1  Story's  E«i.  .Tur.  212:  bnt 
spo  Rnl winkle  v.  Cramer,  27  S.  C  .370;  1.3  Am.  St.  Rop.  04 r>. 

20  Willinps  V.  Conspqna.  Pet.  C  C.  301.  As  to  warranty  on  llie 
snip  of  phattpls,  spe  §§  1703-1780.  hu-lnsivp.  Cal.  Civil  Code. 

aoMilJpr  V.  Van  Tasspl.  24  Cal.  4.'>8:  Polliemus  v.  Heiman,  44  id. 
.57.3. 

81  Arthur  v.  Moss,  1  Oreg.  193. 


5j;<   ir)S;i-ir)Sr)  Forms  of  complaints. 


814 


J  1583.  Executory  contract.  An  oxcculoiy  contract  for  the 
sale  of  corn  requires  tJiat  it  shall  be  in  good  and  marketable 
condition,  without  express  words  to  that  ellect.''-  A  contract  to 
deliver  to  the  defentlant^,  who  were  manufacturers  of  barrels 
anil  staves,  a  certiiin  quantity  of  stave  bolts,  was  held  to  require 
a  delivery  of  bolts  of  a  good  merchantable  quality,  and  suitable 
for  the  purposes  for  which  they  were  intended.-^^  A  contract 
for  the  sale  of  "  oxalic  acid,"  even  when  the  seller  is  not  the 
uuniufacturer,  and  at  tiie  time  of  contracting  expressly  declines 
all  responsibility  as  to  the  quality,  and  the  buyer  has  an  oppor- 
tunity of  inspecting  it,  and  no  fraud  exists,  is  not  complied 
with  by  the  delivery  of  an  article  which  does  not  in  commercial 
language  come  properly  within  the  description  of  "  oxalic  acid.""** 

§  1584.  Fraud  need  not  be  alleged.  No  averment  or  knowl- 
edge of  fraud  is  necessary  to  support  this  action.^"  Such  an 
allegation  sounds  in  tort.^"*  And  if  inserted  in  the  complaint,^'^ 
the  plaintiff  may  be  compelled  to  elect  on  the  trial  betw^een  the 
two  grounds  of  liability. ^^ 

§  1585.  Implied  warranty.  On  a  sale  of  an  existing  article, 
there  is  no  implied  warranty  that  the  article  is  suitable  for  the 
purpose  for  wdiieh  it  was  purchased.^^  In  every  agreement  for 
the  future  sale  of  merchandise,  there  is  an  implied  wan-anty 
that  it  shall  be  merchg,ntable.^°  So  when  one  sells  an  article  of 
his  own  manufacture,  there  is  an  implied  warranty  that  the 
article  is  free  from  any  defect  produced  by  the  manufacturing 
process  itself;  and  where  the  defect  is  in  the  materials  employed, 
the  warranty  is  implied  only  where  he  is  shown  or  may  be 
presumed  to  have  known  the  defect.^^ 

32  Peck  v.  Armstrong,  3S  Barb.  21.5;  and  see  Koop  v.  Handy,  41 
id.  4.54. 

33  Ketchum  v.  Wells.  19  Wis.  25. 

34  .ToslinR  V.  Kin^sford,  13  O.  B.  (N.  S.)  447. 

35  Holman  v.  Dord,  12  Barb.  .3.^6;  Williamson  v.  Allison,  2  East,  446. 

36  Id. 

37  Ediek  v.  Ci-im,  10  Barb.  445. 

38  Sprinpsteed  v.  Lawson,  14  Abb.  Pr.  328;  Sweet  v.  Insjerson,  12 
How.  Pr.  .331. 

39  Millmrn  v.  Belloni.  .34  Barb.  007;  but  compare  Anson  Co.  v. 
Thayer.  .50  FTun.  510;  Edwards  v.  Dillon,  147  111.  14;  McfJlamrock 
V.  Flint.  101  Ind.  278;  Blackmoro  v.  Faiibanks.  70  Iowa,  2.'=i2;  .Tones 
V.  .Inst,  Law  R..  3  Q.  B.  197. 

40  Hamilton  v.  Ganyard.  34  Barb.  204:  Civil  Code,  §  17(18. 

41  Hoe  V.  Sanborn,  21  N.  Y.  5.52;  78  Am.  Dec.  1G3;  Civil  Code, 


815  WAKKAXTlEji    OF    CHATTELS.  §g    158G-loSS 

i  1586.  Quality,  how  averred.  The  unsoilild  condition  of 
the  chattel  should  be  averred  according  to  the  fact,  in  direct  and 
positive  terms,  and  if  valueless,  that  it  was  worth  notliing,  and 
was  of  no  value.'*- 

§  1587.  Sale  by  sample.  (Jii  a  sale  by  sample  tliere  is  an  im- 
plied warranty  that  tlie  ai'ticle  shall  correspond  with  the  sample; 
but  an  examination  of  samples,  when  there  is  an  express  war- 
ranty, is  not  a  waiver  of  the  warranty.'*^  The  law  presumes  that 
the  only  warranty  is  that  the  bulk  shall  conform  to  the  sample 
in  kind  and  quality.*"* 

§  1588.  Warranty  of  quality.  No  particular  form  of  words 
is  essential  to  constitute  a  warranty  of  quahty.  An  assertion 
of  the  vendor,  if  relied  upon  by  the  vendee,  and  understood  by 
both  parties  as  an  absolute  assertion  and  not  merely  an  expres- 
sion of  opinion,  will  amount  to  one.*^  Where  the  plaintiff  in- 
spects the  goods  before  purciiasing,  the  case  is  taken  from  the 
operation  of  the  rule  of  implied  warranty."*^  An  advertisement 
of  goods  for  sale,  giving  them  a  liigher  character  than  upon  ex- 
amination they  turn  out  to  merit,  will  not  amount  to  warranty, 
where  the  purchaser  relies  upon  his  owti  inspection.*^  A  mere 
praise  of  personal  property,  such  as  wool,  indulged  in  by  the 
OAvnor  when  offering  it  for  sale,  does  not  amount  to  an  implied 

5  1700.  Every  person  or  corporation  who  manufactures  an  article 
uufler  an  order  for  a  particular  purpose  warrants  by  tlie  sale  of  it 
tliat  it  is  reasonably  fit  for  that  purpose.  Fox  v.  Harvester  Works, 
83  Cal.  .3.33. 

42i)(.ifen(lo.rff  v.  Gajre,  7  Barb.  18. 

4'<  Williiifrs  V.  Consequa,  Pet.  C.  C.  301. 

44  Knnisdcll  v.  T'nitcd  States.  2  Ct.  of  CI.  (Nott  &  H.)  r^OH:  ITuffhos 
V.  Rr.-iy.  m  Cal.  2.S4;  Voss  v.  Ma^uire,  18  Mo.  App.  477;  Gould  v. 
Stfin.  140  ^lass.  ."O;  14  Am.  St.  Kep.  4.5.'>. 

■i''  I'ollu'iiiu.s  V.  Ilcimnn.  4.'">  Cal.  'u:',;  Sweet  v.  Bradley.  24  Barb. 
."VIO;  Cliaitinan  v.  .Murch.  10  .Tohnd.  2!)0;  10  Am.  Dec.  227:  Carley  v. 
Wilkins,  C  Barb.  .^>.")7;  Wilbur  v.  Cartripht,  44  id.  .53(5;  Kirclier  v. 
Oinrad.  0  Moul.  101:  18  Am.  St.  Hep.  731;  Fatrlianlc  Co.  v.  IMetzser. 
lis  N.  V.  2(;u:  k;  Am.  St.  Kep.  7.".3;  Kiiiiliall  v.  I'.nn.u-s.  144  Mass. 
321;  McLennan  v.  Ohnien,  7.'>  Cal.  .^.'S. 

4«  Mooro  V.  McKliday,  r>  Cal.  471.  'I'hc  ri'ouiuIs  nml  iiiimiplos 
upon  which  warrant ir>s  of  titlo,  of  quality.  (Mc,  are  implied,  cou- 
8idere«1  in  lloe  v.  Sanborn.  21  X.  Y.  r).'2;  78  Am.  Dec.  1(i3;  also, 
Horner  v.  I'arldiurst,  71  .\bl.  110;  Hi-lit  v.  I',ac(yn,  12<^  M.iss.  10; 
30  Am.  Rep.  fi.'',0. 

47  Calhoun  v.  Vecliio,  3  Wash.  C.  C.  10.".;  McVeigh  v.  Mossersmlth, 
5  Cranch  C.  C.  310. 


s;^    lC)8L»-iJyi  iOlLMS    Oi'    COAli'LAlMa.  8iu 

Wiurauty  oi  its  quality  or  couilition,  il"  the  buyer  has  an  oppor- 
tunity to  examine  it  and  i'aiis  to  do  so,  and  uo  ai'tilice  is  used 
by  the  seller  to  prevent  him  from  mailing  an  examination.^** 
11'  one  pai'ty  contracts  to  deliver  the  other  wool  "  in  good  order,"' 
and  tlie  latter  agrees  to  accept  and  pay  for  it,  the  clatise  "  in 
good  order  "  is  an  express  wai'ranty.'*" 

§    1589.   On  warranty  of  soundness. 

Form  No.  409. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of-   ,   18..,  at 

,  the  defendant  sold  to  the  plaintiff  a  horse,  for 

dollars. 

II.  That  by  the  said  contract  of  sale  the  defendant  warranted 
the  said  horse  to  be  sound,  and  thereby  induced  the  plaintiff  to 
purchase  the  same  of  him,  and  to  pay  him  therefor  the  said 
price  of dollars. 

III.  That  the  said  horse  was  at  the  time  of  said  sale  unsound 
in  this:  tliat  [state  wherein  he  w^as  unsound]. 

IV.  That  the  plaintiff  was  misled  and  injured  thereby,  and 
has  sustained  damages  by  reason  of  the  premises,  to  the  amount 
of dollars. 

[Demand  of  Judgment.] 

§  1590.  Duty  of  purchaser.  A  purchaser  can  not  proceed 
without  inquiry  or  examination  to  use  an  article  which  will 
damage  his  business,  relying  upon  a  warranty  which  only  goes 
to  the  fact  of  the  naturo  or  character  of  the  article,  and  not  to 
the  effect  of  using  it,  and  still  hold  the  vendor  responsible  for 
the  consequences.^^ 

§  1591.  Measure  of  damages.  The  plaintiff  may  recover  the 
difference  between  the  value  of  the  chattel  as  w^arranted  and  as 
found  to  be  by  the  court  or  jury,  and  special  damages  for  in- 
juries occa.sioned  by  the  conditiou  of  the  chattel.^^  SpceinI 
damages  for  injuries  occasioned  by  the  condition  of  the  chattel 
must  be  averred,  as  the  rnmmunir-ation  of  infectious  diseases  by 
an  animal  w'arranted  sound.^^ 

4«  Byrne  v.  .Tansen.  ^^0  Cal.  024:  Rerman  v.  Woods,  38  Ark.  3.51. 
40  Polhemus  v.  Heiman,  ,50  Cal.  4.^8. 
•'io  Afilhum  V.  Belloni.  34  Barb.  fi07. 
•11  Jpffroy  V.  Bigelow,  13  Wend.  .518:  28  Am.  Dec.  476. 
f'S  .Teffroy  v.  Bipelow.  13  Wend.  518:  see  McLannan  v.  Ohmen,  75 
Cal.  558;  Fox  v.  Harvester  Works,  83  id.  333. 


817  WARRANTIES    OF    CHATTELS.  §§    1592-1596 

§  1592.  That  plaintiff  relied  on  warranty.  A  oomplaint  wluck 
alleges  that  plaintilf  purchased  of  defendant  twenty-seven  head 
of  hogs;  that  defendant  represented  them  to  be  sound  and 
healthy;  that  the  plaintiff  rehed  on  said  representations,  having 
no  opportunity  by  ordinary  diligence  to  discover  that  the  same 
were  not  true;  that  in  fact  they  were  diseased  and  unliealthy, 
being  then  infected  with  hog  cholera,  and  known  to  be  so  by  the 
defendant,  and  that  afterwards  twenty-five  of  them  died  with 
that  disease,  is  good  on  demurrer.^^ 

§  1593.  The  plaintiff  was  misled.  The  complaint  must  aver 
that  the  plaintiff  was  actually  misled  by  reason  of  the  warranty.^* 

§  1594.  Warranty  of  soundness.  A  general  warranty  of 
soundness  covers  even  visible  defects  of  a  chattel,  unless  they 
are  such  as  could  be  discerned  by  an  ordinai7  observer  without 
peculiar  skill.^^  A  mere  cold  controllable  by  ordinaiy  remedies, 
not  affecting  the  general  health  or  usefulness  of  a  horse,  is  not 
an  unsoundness.^^  A  guaranty  that  the  article  should  pass  in- 
spection is  nothing  more  than  the  usual  warranty  of  the  sound- 
ness and  quality  of  the  thing  sold.^^ 

§  1595.  Bights  in  case  of  breach.  The  breach  of  a  warranty 
entitles  the  buyer  to  rescind  an  agreement  for  sale,  but  not  an 
executed  sale,  unless  the  warranty  was  intended  by  the  parties 
to  operate  as  a  condition.^^ 

§  1596.  On  a  warranty  of  judgment. 

Form  No.   410. 

[Title.] 

The  plaintiff  complains,  and  alleges-: 

I.  That  on  the    day  of   18 .  . ,  the 

defenflant,  for  a  valuablo  consideration,  assigned  to  this  plain- 
tiff a  judgment  which  on  tho day  of , 

18..,  he  recovered   in   tbo   Superior  Pourt  of   the   countv   of 

M  Raker  r.  :>rr-f;inniss'.  22  Tnd.  Z'l. 

f'4  TToJtnan  v.  Dnrd.  12  l?;ir1i.  r.^.C:  Oneida  ^ffir.  Soe.  v.  T.awrenoe, 
4  Tow.  440. 

•''5  Chit.  Tont.  4.'n:  P.-irs.  yicro.  Law.  ."7;  ^r.^^^etsnn  v.  Wriirlit,  20 
Enp.  O.  I.aw,  2nf):  P.inlseye  v.  Fmst,  ?A  Rnrh.  r.riT:  see  IToffman 
V.  Oatea,  77  Oa.  701;  Crossmaii  v.  .Tolin.son.  r..T  Vt.  ?,?,:\:  T.eavitt  v. 
Flpteher.  00  N.  n.  182. 

'•n  Sprlnpsteerl  t.  T,awsf»ii.  11  .\l)h.  Pv.  r?2«:  23  How.  Pr.  302. 

•'•7  Gibson  V.  Stevens.  S  TTow.  (V.  S.)  .384. 

B«CaL  Civil  Code.  §  17«r,. 

Vol.  T— 103 


§  1597  FORMS  OF  COMPLAINTS.  818 

,  f  or  the  sum  of dollars,  in  a  certain 

action  wherein  A.  B.,  del'endaiit  above  named,  was  the  plaintift", 
and  one  C.  D.  was  defendant. 

II.  That  said  assignment  contained  a  covenant  on  the  part 
of  the  defendant,  of  which  the  following  is  a  copy  [copy  of  the 
covenant]. 

III.  That  in  truth,  at  the  time  of  said  assignment,  said  judg- 
ment had  been  paid  in  full  to  the  defendant,  and  no  pai't  thereof 
was  or  now  is  due  thereon. 

IV.  That  by  means  of  the  premises  this  plaintiff  was  misled 
and  injured,  to  his  damage dollars. 

[Demand  of  Judgment.] 

S    1597.   On  a  warranty  of  a  note. 

Form  No.  411. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18. .,  the 

defendant  offered  to  pass  to  the  plaintiff,  for  a  valuable  con- 
sideration, a  promissory  note,  of  which  the  following  is  a  copy 
[copy  of  the  note],  and  he  then  and  there  w^arranted  the  said 
note  to  have  been  made  l)y  the  said  A.  B. 

II.  That  the  plaintiff,  relying  upon  said  warranty,  purchased 
said  note  of  the  defendant,  and  paid  therefor  the  sum  of 
dollars. 

III.  That  said  note  was  not  made  by  said  A.  B.;  that  his 
name  was  forged  thereto. 

IV.  That  by  reason  of  the  premises  the  plaintiff  was  injured 
and  misled,  to  his  dam  acre dollars. 

[Demand  of  Judgment.] 


CHAPTER  XI. 

SEVERAL  CAUSES  OF  ACTION  UNITED. 

§   1598.   Cause  of  action  under  the  money  counts. 

Form  No.  412. 

[Title.] 

The  plaintiffs  complain,  and  allege: 

I.  That  at  the  times  hereinafter  mentioned,  the  plaintiffs 
were  partners,  doing  business  at  the  city  and  county  of  San 
Francisco,  state  of  California,  under  the  firm  name  of  A.  B.  & 
Co.,  and  the  defendants  were  partners  doing  business  at  the 
said  city  and  county  of  San  Francisco,  under  the  firm  name  of 
C.  D.  &  Co. 

First. —  For  a  first  cause  of  action,  the  plaintiffs  allege: 

I.  That  on  the    day   of    ,    18..,   at 

,  at  the  request  of  the  defendants,  the  plaintiffs 

deposited  with  the  defendants  the  sum  of dollars, 

gold  coin  of  the  United  States,  which  sum  the  defendants  prom- 
ised to  pay  to  the  plaintiffs  on  demand. 

IT.  That  on  the    day  of    ,  18 .  . ,  at 

the  plaintiffs  demanded  payment  of  the  same 

from  the  defenrlants,  but  they  have  not  paid  the  same. 

Second. — And  for  a  second  cause  of  action,  the  plaintiffs 
allege: 

T.  That   on   the    day  of    18..,   at 

the  defendants  received    dollars 

from  one  E.  F.,  to  be  paid  to  the  plaintiffs. 

TI.  That  the  defendants  have  not  paid  the  same. 

Third. —  And  for  a  third  cause  of  action,  the  plaintiffs  allege: 

T.  That   on   the    day   of    18..,   at 

the  plaintifT?  lent  to  the  dofondauts 

dollars. 

TT.  That  the  defendants  have  not  paid  the  same. 

fDE^r.VND  OF  .TrnOMENT.]^ 

1  The  plaintiff  may  iinlto  sevprnl  causes  of  aftioii  in  tlip  same 
complaint  where  they  all  .nriBfi  out  of:  1.  Oontracta.  express  or  Im- 
plied: 2.  rinlms  to  recover  specific  renl   property,   with  or  without 


§§    1590,  1000  lOKMS    OF    COMl'LAiJS'TS.  820 

i  1599.  Accouiits.  \\  hou  t-epaialc  Mccoiinls  bel.weeii  the  same 
parties  are  separato  caub'es  oi'  action,  they  may  be  separately 
stated.^  Tlie  plaintiH"  may  demand  in  the  same  action  that  de- 
fendant ae'count  for  and  refund  a  proportion  of  the  outfit  and 
advant'cs  made  on  a  joint  adveJiture.^ 

§  1600.  Causes  of  action  may  be  united.  The  phlintiff  may 
unite  t^everal  causes  of  action  in  the  same  complaint  when  they 
arise  from  and  constitute  part  of  the  same  transaction,^  if  such 
union  does  not  amount  to  a  misjoinder,  in  which  ca.se  the  ob- 
jection can  be  raiseii  only  by  demurr.er.''  lUit  actions  so  united 
must  affeat  all  the  parties  to  the  action,  and  not  require  diiferent 
places  of  trial;  but  the  defendants  need  not  be  all  equally  af- 
fected.•"'     An  action  for  goods  sold  and  for  the  price  of  goods 

damages  for  the  withholding  tlieroof,  or  for  waste  committed 
thereon,  and  tlie  rents  and  profits  of  the  same;  S.  Claims  to  recover 
specilic  i>ersonal  property,  with  or  without  damages  for  the  with- 
holding tliereof ;  4.  Claims  against  a  trustee  by  virtue  of  a  contract, 
or  by  operation  of  law;  5.  Injiu-ies  to  character;  0.  Injuries  to  per- 
son; 7.  Injuries  to  property.  The  causes  of  action  must  belong  to 
one  only  of  these  classes,  and  must  affect  all  the  parties  to  the 
action,  and  not  require  different  places  of  trial,  and  must  be 
separately  stated;  but  an  action  for  malicious  ari-est  and  prosecu- 
tion, or  either  of  them,  may  be  united  with  an  action  for  either  an 
Injury  to  character  or  to  the  person.  Cal.  Code  Civ.  Pro.,  §  427; 
N.  Y.  Code  Pro.,  §  484.  The  Ohio  Oode,  section  80  (.5019),  permits 
the  joinder  of  causes  of  action  for  injuries,  with  or  without  force,  to 
person  and  property,  or  either.  The  Wisconsin  Oode,  section  31,  is 
the  same  as  the  Ohio  Code.  The  Iowa  Code,  section  2630,  is  as  fol- 
lows: "  Causes  of  action  of  whatever  kind,  where  each  may  be 
prosecuted  by  the  same  kind  of  proceedings,  provided  that  they 
be  by  the  same  party,  and  against  the  same  party  in  the  same 
rights,  and  if  suit  on  all  may  be  brought  and  tried  in  that  county. 
may  be  joined  in  the  same  petition;  but  the  court,  to  prevent  con- 
fusion thei-ein.  may  direct  all  or  any  iwrtion  of  the  issues  joined 
therein  to  be  tried  separately,  and  may  determine  the  order  thereof." 
T'^nder  this  section,  tort  and  contract  may  be  joined.  Turner  v. 
First  Nat.  Rank,  20  Iowa,  ,562.  Code  of  Dakota,  §  136,  is  copied 
from  the  Ohio  Code;  Nevada  Oode,  §  04;  Oregon  Oode.  §  01. 

2  Phillips  V.  Berick,  16  .Tohns.  136;  8  Am.  Dee.  2<5>:  Stevens  v. 
Lockwowl,  13  Wend.  044;  28  Am.  Dec.  492;  Staples  v.  Goodrich,  21 
Barb.  317;  Secor  v.  Sturgis,  2  Abb.  Pr.  69. 

•T  Oarr  v.  Bedman.  6  0^1.  .574. 

4  Cal.  Code  Civ.  Pro..  S  427;  and  see  §  314,  ante. 

6  Fritz  V.  Fritz.  23  Ind.  .388. 

•Earle  v.  Scott,  .50  How.  Pr.  .506;  see  Van  Wagenan  v.  Hunt,  7 
Hun,  .328:  Ladd  v.  .Tames,  10  Ohio  St.  437;  see  Nichols  v.  Drew,  25 
Hun,  31.5;  94  N.  Y.  22. 


821  SEVERAL    CAUSES    OF    ACTION    UNITED.  §    IGOl 

wrongfully  taken  from  a  third  person  and  sold,  may  be  joined; 
the  tort  in  the  latter  having  been  waived  by  its  assignment/ 
and  must  belong  to  the  same  class/  and  must  be  consistent  with 
each  other.^ 

§  1601.  Claims  in  two  capacities.  Claims  against  trustees 
by  virtue  of  a  contract,  or  by  operation  of  law,  may  be  joined.^*^ 
So,  a  trust  and  a  vendor's  lien  may  be  united  in  one  action.^^ 
Counts  on  promises  to  the  testator  and  to  his  executor  in  his 
representative  capacity  may  be  joined. ^^  Counts  on  promises 
made  by  the  testator  may  be  joined  with  counts  on  promises 
made  by  the  administrator,  as  such.^^  After  counts  by  the  plain- 
tiff, as  executor,  for  an  excessive  distress,  and  for  distraining 
for  more  rent  than  was  due,  the  declaration  proceeded  thus: 
"  And  the  plaintiff,  as  such  executor  as  aforesaid,  also  sues 
the  defendant  for  money  paid  by  the  plaintiff  as  such  executor 
as  aforesaid,  for  the  defendant,  at  his  request,  and  for  money 
received  by  the  defendant  for  the  use  of  the  plaintiff,  and  for 
money  found  to  be  due  from  the  defendant  to  the  plaintiff  on 
an  account  stated  between  them.     And  the  plaintiff,  as  such 

T  Hawk  V.  Thorn.  54  Barb.  164. 

8  Cleveland  v.  Ban-ows,  59  Barb.  364;  Thomas  v.  Railroad  Co., 
n?  N.  Y.  245:  Bowen  v.  Mandeville,  95  id.  2.37;  Krower  v.  Reynolds, 
99  Id.  245. 

0  Smith  V.  Ilallook,  8  How.  Pr.  73.  In  an  action  for  divorce  and 
allmonj-  it  is  not  an  improper  joinder  of  cau.ses  of  action  to  seek 
at  the  same  time  to  set  aside  certain  fraudulent  conveyances  on 
whlr-h  an  award  of  alimony  is  dependent.  Prouty  v.  Prouty,  4 
Wash.  St.  174.  In  an  action  by  a  stockholder  in  a  mining  coi-pora- 
tlon,  to  recover  against  the  directors  the  statutory  penalty  for 
failure  to  post  a  verified  balance  sheet  for  the  previous  month,  a 
romjilaint  whirh  alleges  in  one  oount  more  than  one  failure  on  the 
I)art  of  tlie  directors  to  make  tlie  required  posting,  and  seeks  to 
recover  a  penalty  of  .$1,000  for  ear-h  failure,  does  not  join  several 
diBlinrt  causes  of  action.  I>(tveland  v.  Garner,  71  Cal.  541.  Where 
tlie  fouiplainf  sets  fortli  only  one  cause  of  action  for  fraudulent 
misnpprojiriation  by  a  trustee  of  the  funds  of  a  corporation,  and 
the  relief  sought  has  reference  only  to  this  cause  of  action,  it  is 
no  objection  to  the  complaint  that  the  relief  sought  is  not  single. 
Wlckerslinm  v.  Crittenden.  03  Cal.  17. 

10  Cal.  Code  Civ.  Pro.,  §  427. 

11  Burt  v.  Wilson.  2S  Cal.  <'<:',2:  S7  Am.  Dec.  142. 

12  Brown  v.  Webber.  C  Cusli.  .571:  Sullivan  v.  ITolker.  15  Masp. 
874. 

13  Ilajigood  V.  Houghton.  10  Pick.  154;  Dixon's  Executors  v. 
Ramsay's  Administrators,  1  Cranch  C.  O.  472. 


§§    loo".',  1G03  FOK.Ma    01'    COMPLAINTS.  S'ZZ 

oxecutor  as  al'oresaid,  claims,  etc.  It  was  held,  on  demurrer, 
that  the  declaration  wa^i  bad  for  misjoinder.^"* 

i  1602.  Class-commoa  covints.       Where  the  form  of  the  action 

is  the  same,  and  where  the  same  plea  may  be  pleaded  and  the 
same  judgment  given  on  aJl  the  counts,  they  are  well  joined. ^^ 
So,  the  common  counts  may  l)e  united  in  one  complaint,  if 
separately  slated.^"  But  they  can  not  be  united  in  one  count 
as  one  cause  of  action,  without  any  specilication  of  the  sums 
due  upon  each  several  cause. ^''^ 

§  1603.  Contracts.  Causes  of  action  arising  from  contracts, 
express  or  implied,  may  be  united.  Thus  claims  due  as  dam- 
ages for  delay,  and  a  demand  to  set  aside  an  a,ward,  all  growing 
out  of  the  same  contract,  may  be  united  in  one  action.^*  To 
reform  a  written  contract,  and  for  Judgment  thereon,  when  re- 
formed.^^  For  reformation  of  a  contract,  and  for  damages  for 
breach  of  it.^  Damages  for  false  representations,  and  for 
breach  of  contract.^^  Loss  of  goods  by  carrier,  and  also  for 
freight  overpaid. ^^     A  cause  of  action  for  false  representations 

14  Davies  v.  Davies,  1  Hurl.  &  Colt.  451. 

i-i  Fail-field  v.  Burt,  11  Pick.  244;  Worster  v.  Canal  Bridge,  16  Id. 
541.  All  the  money  counts,  with  one  for  goods  sold  and  delivered, 
work  and  labor,  and  an  account  stated,  may  be  combined  in  what 
is  commonly  called  an  "  omnibus  coimt."  Cape  Elizabeth  v.  Lom- 
bard, 70  Me.  400;  Griffin  v.  Murdock,  88  id.  254. 

16  Freeborn  v.  Glazer,  10  Cal.  337;  De  Witt  v.  Forter,  13  id.  171; 
Buckingham  v.  Waters.  14  id.  14();  Keller  v.  Hicks,  22  id.  4.57;  83 
Am.  Dec.  78;  Birdseye  v.  Smith,  32  Barb.  217;  see  City  Caiiiet.  etc.. 
Works  V.  Jones,  102  Cal.  .50(>;  Richardson  v.  Carbon  Hill  Coal  Co., 
10  Wash.  St.  648. 

17  Buckingham  v.  Waters,  14  Cal.  146. 

18  See  V.  Partridge,  2  Duer,  463. 

19  Stoiy's  Eq.  Jur.,  §§  157-161;  2  Johns.  Ch.  .585;  4  id.  144;  Gooding 
V.  M'Alister,  9  How.  Pr.  123. 

20  Bidwell  v.  Astor  Mut.  Ins.  Co.,  16  N.  Y.  263.  A  cause  of  action 
to  recover  back  money  paid  by  mistake  of  facts  rests  upon  an  im- 
plied contract,  and  may  be  joined  with  a  cause  of  action  upon  nii 
exjjress  contract  for  the  recovei-y  of  rent  upon  premises  leased. 
Olmstead  v.  Daupliiny,  104  Cal.  635. 

21  Robinson  v.  Flint,  16  IIow^  Pr.  240;  7  Abb.  Pr.  3!)3;  see,  how- 
ever, Waller  v.  Raskan,  12  How.  Pr.  28. 

22  Adams  v.  Bissell,  28  Barb.  382.  As  to  contracts,  witli  allega- 
tions of  matters  of  fraud,  see  Roth  v.  Palmer.  27  Barb.  652.  A 
cause  of  action  for  money  lost  tln-ougli  the  negligence  of  a  bailee, 
can  not  be  joined  with  a  cause  of  action  for  tlie  conversion  of  the 
money  to  the  use  of  the  defendant.     Stark  v.  Well  man,  06  Cal.  400. 


823  SEVERAL    CAUSES    OF   ACTION    UNITED.       §§    1604—1  GOG 

ill  inducing  the  plaintiff  to  enter  into  a  contract,  and  a  cause  of 
action  for  a  breach  of  the  same  contract,  may  be  joined.-"  On 
the  joinder  of  ordinary  claims  in  contract  with  claims  for  which 
defendant  is  arrestable,  the  plaintiff  may  waive  arrestability  in 
the  latter  case.''* 

§  1604.  Contract  of  partners.  A  complaint,  after  stating 
cause  of  action  on  a  contract  against  partners,  and  demanding 
judgment  therefor,  contained  also  allegations  that  the  defend- 
ants were  insolvent,  and  had  fraudulently  confesi,ed  judgment 
to  hinder  their  creditors,  and  demanded  an  injunction  and  a  re- 
ceiver. Held,  that  although  the  last  matter  might  be  obnoxious 
to  a  motion  to  strike  out,  its  insertion  did  not  render  the  com- 
plaint demurrable.^  In  Massachusetts,  a  surviving  partner  may 
join  in  the  same  action  a  demand  due  to  the  firm,  and  another 
due  to  himself  in  his  own  right;  or  demands  due  to  him  ixs  the 
surviving  partner  of  two  firms.^® 

§  1605.  Each  cause  complete.  Each  separate  cause  of  action, 
as  stated,  must  be  complete  in  itself,  and  must  stand  by  itself.^ 
And  conversely,  that  numerous  items  of  a  distinct  class  should 
be  stated  in  distinct  counts.^ 

§  1606.  Injuries  to  the  person.  Claims  for  injuries  to  char- 
acter, or  injuries  to  character  and  malicious  arrest  and  prose- 
cution, may  be  united.^  Plaintiff  may  recover  in  an  action  for 
the  combined  injurv-  to  cliaracter  and  person,  when  the  matters 
arise  from  and  constitute  a  part  of  the  same  transaction.^" 

23  Robinson  v.  Flint,  7  Al)l>.  Pr.  .S0.3,  note:  and  soe.  also.  Freer-  v. 
I)enton.  01  \.  Y.  492:  .Tones  v.  .fohnson.  10  Bush.  649. 

24  Ilif  kox  V.  Fay,  .30  Barb.  9-14. 

2'  Meyer  v.  \'an  Collem.  7  Abb.  Pr.  222. 

20  Stafford  v.  Cold,  9  Pic  k.  r..3,3.  Misjoinder  of  causes  of  action 
Involvinj.'  piirtnersliip  trnns;utions.  See  P.ohlow  v.  Fischer,  102  Cal. 
208;  but  fonipare  Brenmer  v.  r.eavitt,  109  id.  I.^O. 

27  Lattin  v.  McCarty,  17  How.  Pr.  2.39:  8  Aid).  Pr.  22;".;  see.  also, 
Watson  V.  S.  F.  t<t  II.  B.  B.  R.  Co.,  41  Cal.  17:  Ilarsen  v.  Bayaud, 
r»  Dner.  O.'O:  Dorni.'in   v.  Kellani,  14  How.  Pr.  184:  §  .314.  ante. 

2s.\(lanis  V.  Holley,  12  How.  Pr.  .320:  Ilillninii  v.  nillman,  14  id. 
4.'.0:  and  see.  also.  I/r)nfrworthy  v.  Knai>)i.  4  .\bb.   Pr.  11!"). 

2»Cal.  Code  Civ.  Pro..  §  427:  Howe  v.  Peekhain.  0  How.  Pr.  229; 
S.  C,  in  Barb.  O.'O:  Hnll  v.  Vreeland.  42  I<1.  ."4.3;  IS  Abb.  Pr.  182; 
Brown  V.  Riec.  ."1  T'.-d.  480:  C;ii-tei-  v.  T>e  Camp,  in  Hun,  2."8;  Walts 
V.  Hilton,  3  Hun.  fWJ. 

«<>  .Tones   V.    Steamship    Cortes,    17    Cal.    487:    79    Am.    Dec.     142. 


^§   UiUT,  1G08  roKMs  of  comi'Laints.  8^-1 

§  1607.  Injuries  to  person  and  property.  It  SCCms  that  liegli- 
^L'uco  aiid  tlie  daiuago  arising  tliurelroia,  botii  to  the  person  and 
ju-operty  of  plaint  ill,  may  be  united.-'^  For  one  injury,  all  the 
acts  of  uegligence  should  be  alleged  in  one  count. ^^  Injuries 
resulting  to  both  person  and  property,  from  the  same  negligent 
act,  constitute  but  one  cause  of  ax;tiou.^^ 

§  1608.  Injuries  to  property.  Actions  for  injuries  to  prop- 
erty may  be  united.^'*  The  uuian  in  one  count  of  a  complaint 
of  an  allegation  that  defendants  '"  have  wrongfully  built  dams 
and  Humes  across  said  j\lormon  creek  *  *  *  gg  as  to  turn, 
the  wat/er  of  said  crcvk  out  of  its  natural  channel,"  etc.,  and 
thus  divert  it  from  plaintiff,  with  an  allegation  that  defendants 
'•  have  constructed  gates,  etc.,  in  their  said  dam&  and  flumes, 
wliich  they  *  *  *  i^oist  for  the  purpose  of  clearing  out 
said  dams  and  flumes  of  slum,  stone,  and  gravel,  the  accumula- 
tion of  which  renders  the  ^^'ater  useless  to  plaintiff,"  does  not 
make  the  complaint  demurrable,  on  the  ground  that  it  unites 
several  distinct  causes  of  action  in  one  count.^^  In  an  action 
far  injuries  to  a  mining  claim,  a  claim  for  damages  to  the  plain- 
tiff by  reason  of  the  breaking  away  of  the  defendant's  dam,  and 
the  consequ-ent  washing  away  of  the  pay-dirt  of  the  plaintiff, 
may  properly  be  joined  with  a  claim  for  damages  for  preventing 
plaintiff  from  working  his  claim.^®  Detention  of  property,  and 
injury  to  it  while  detained,  may  be  united.^'^  Value  of  prop- 
erty destroyed,  and  damages,  may  be  united.^^  Allegations  for 
oonversirm  and  detention,  and  prayer  for  specific  delivery,  is 

Oriminal  conA'orsation  with  plaintiff's  wife  held  to  be  an  injury  to 
the  person.  Delauiater  v.  Rus.sell.  2  Code  R.  147.  So  also  is 
sednetion.    Taylor  v.  North,  3  id.  9. 

31  Williams  v.  Holland,  10  Bing.  112,  117;  Bllnu  v.  Campbell,  14 
Johns.  433;  Wilson  v.  Smith,  10  Wend.  328;  1  Chit.  PI.  27;  Howe  v. 
Peokham,  6  How.  Pr.  229;  Freeman  v.  Webb,  21  Neb.  160. 

32  Dickens  v.  New  York  Cent.  R.  R.  Co.,  13  How.  Pr.  228. 

33  Howe  v.  Peckhani.  10  Barb.  G.ld;  S.  C,  r>  How.  Pr.  229.  A  cause 
of  action  for  an  injury  to  the  person  is  improperly  united  with  a 
separate  cause  of  action  for  a  subserpient  injury  to  the  complain- 
ant's projierty.     Thelin  v.  Stewart,  100  Cal.  372. 

34  Cal.  Code  Civ.  Pro.,  §  427;  Moore  v.  Massini,  ,32  Cal.  .^.90;  Howe 
V.  Peckham.  G  How.  Pr.  229;  Cleveland  v.  Barrows,  .^)9  Barb.  304. 

35  Gale  V.  Tuolumne  Water  Co..  14  Cal.  2,5. 

sepraler  v.  Sears  T^nion  Water  Co..  12  Cal.  55.5:  73  Am.  Dec.  562. 
37  Smith  v.  Orser.  43  Barb.  187. 
38Tendeson  v.  Marshall.  3  Cal.  440. 


825  SEVERAL    CAUSES    OF    ACTION    UNITED.       §§    1609-1612 

no  misjoinder,  being  held  a  demand  for  only  one  kind  of 
remedy."*^  For  violation  of  agreement,  and  for  injury  to  per- 
sonal property."*"  Damages  and  injunction  may  be  joined  in  an 
action  for  threatened  injury  to  property.  The  owner  of  land 
may  join  in  the  same  complaint  a  claim  for  damages,  as  as- 
signee, caused  by  a  trespass  on  the  land,  while  it  was  owned 
by  his  grantor,  and  a  claim  for  an  injunction  for  a  threatened 
injury  to  the  land."*^  The  plaintiff  may  join  in  the  same  com- 
plaint a  cause  of  action  for  distinct  and  independent  injuries 
to  property,  and  the  property  injured  in  each  cause  of  action 
may  be  the  same  or  different,  and  may  be  either  personal  or 
real.^^ 

§  1609.  Jurisdiction.  Where  the  separate  causes  of  action 
amount  togellier  to  more  than  the  sum  required  to  give  juris- 
diction, if  joined  in  one  declaration  they  will  give  jurisdiction.^^ 

§  1610.  Money  counts  and  warranty.  Money  counts  may  be 
added  to  a  count  on  the  warranty.  Or  a  count  for  deceit  may 
be  added  to  a  count  on  the  warranty.^^  But  a  claim  in  assumpsit 
for  warranty  of  a  horse,  and  for  wrongfully  concealing  his  de- 
fects, could  not  be  united.^^  But  when  the  form  of  action  in 
tort  is  adopted,  it  is  not  necessary,  to  enable  plaintiff  to  recover 
upon  the  count  for  false  warranty,  that  a  scienter  should  be 
averred. ^^ 

§  1611.  Money  had.  A  claim  for  money  had  and  received, 
and  a  claim  for  Hie  delivery  of  a  satisfied  promissory^  note, 
arising  out  of  the  same  transaction,  may  be  united."*^ 

§  1612.  Quantum  meruit.  A  quanimn  lucniit  or  a  qiiantuni 
valebat  may  be  joined  witli  counts  upon  a  spccialty.^^ 

8"  Vopel  V.  Babcofk,  1  Abli.  Pr.  170. 

40Badffer  v.  Ronedict.  1   ITilt.  414;  4  Al)l).  IV.  176. 

41  Moore  v.  MnsBini,  ?,2  Hal.  ."Dr». 

42  Id. 

*^  RidpTway  r.  Panrnst,  1  Craneh  O.  C.  RS. 

44  Vail  V.  Stronp.  10  Vf.  4.''>7:  Dobbin  v.  Foyb-s.  2  Cranoh  C.  C.  r>.". 

4-'-.  Swpft  V.  InpprsfMi.  12  How.  Pr.  '.\?A:  Spriiifrstoad  v.  Lawson. 
2?.  Id.  .''.02. 

4«  Brown  v.  Edpinplnn.  2  :Mnn.  ^-  P..  270:  IToIman  v.  Dord,  10 
Barb.  ?,?,C,\  Srhiu-bardt  v.  Aliens.  1  Wall.  .''..'.O. 

47Cahoon  v.  Bnnk  of  I'tlr-a.  7  TTow.  Pr.  401. 

4«  Smith  V.  T'^irst  Con^.  Mcef  intr-bni"-<>  of  Lowell.  R  Pick.  17R:  Van 
Deusen  v.  Blum,  18  Id.  220:  20  Am.  Dec.  582. 

104 


§§    1(U3-1()15  FORMS    OF   COMPLAINTS.  82G 

J  1613.  Separate  demands.  Separate  demands  under  one 
and  llie  t^ame  riglit  may  likewise  properly  bo  joined  in  the  same 
eount."'^  Several  grounds  oi'  liability  against  the  same  defend- 
ant, arising  out  oi'  the  same  transaction,  may  be  joined  in  one 
action.-'''^  By  the  same  plaintill',  as  devisee  for  rent,  and  as 
executrix,  for  breach  of  covenant,  all  arising  out  of  the  same 
lease.'''^  So  also  claims  against  the  same  defendant  in  dilferent 
capacities  may  be  united.^^  For  money  received  on  account  of 
an  estate,  and  also  for  a  promissory  note  which  is  part  of  the 
estate,  but  payable  to  the  executor  individually.-'"'-^  So  of  claims 
against  various  parties,  liable  to  contribute  their  proportion  for 
repairs,  for  the  general  benefit  of  all.^'*  Against  constable  for 
different  breaches  of  duty,  and  against  his  surety,  held  capable 
of  joindcr.^*^  It  would  also  seem  that  in  New  York,  a  claim  by 
a  stockholder,  who  is  also  a  judgment  creditor  of  a  corporation, 
may  in  certain  cases  maintain  an  action  against  the  corporation, 
and  against  its  other  stockholders,  and  its  other  creditors,  with 
a  view  to  ascertain  and  provide  for  the  rights  of  all  parties.^^ 

§  1614.  Several  counts.  A  complaint  which  contains  a  count 
setting  forth  the  facts  attending  the  purchase  of  a  county  war- 
rant by  plaintiff,  and  charging  that  defendants  are  liable  upon 
an  implied  contract  to  repay  the  purchase  money,  and  a  second 
count  charging  defendants  as  indorsers  of  negotiable  paper  and 
a  third  count  in  the  usual  fonn  for  money  had  and  received, 
is  not  demurrable  on  the  ground  of  a  misjoinder  of  causes  of 
action.^'^  In  Iowa,  a  party  may  state  in  one  count  a  cause  of 
action  on  a  note,  and  in  another  a  cause  of  action  on  the  con- 
sideration of  a  note.^^ 

§  1615.  Specific  performance.  A  claim  for  specific  perform- 
ance of  a  contract  to  convey  real  estate,  and  for  payment  of  a 
reasonable  sum  for  use  and  occupation,  is  not  setting  up  two 

49  Longworthy  v.  Knapp.  4  Abb.  Pr.  11.^:  and  see  Wood  v.  Sidney- 
Sash,  etc.,  Co.,  92  Hun,  22;  37  N.  Y.  Supp.  SSr-,. 

50  Durant  v.  Gardner,  19  How.  Pr.  94;  10  Abb.  Pu.  445. 

51  Armstrong  v.  Hall,  17  How.  Pr.  70. 

52Pussley  v.  Aiken,  11  N.  Y.  494;  Lord  v.  Vreeland,  13  Abb.  Pr. 
19.5. 

53  Welles  V.  Webster.  9  How.  Pr.  251. 

54  Denman  v.  Prince.  40  Barb.  213. 

55  Moore  V.  Smith.  10  How.  Pr.  .361. 

58  Oeery  r.  New  York  &  Liveniool  S.  S.  Co..  12  Abb.  Pr.  268. 
57  Keller  v.  Hicks,  22  Cal.  4.57;  R3  Am.  Dec.  78. 
cscamp  V,  Wilson,  16  Iowa.  225. 


837  SEVEKAL    CAUSES    OF    ACTION    UNITED.       §§    1(J16-1(J1S 

distinct  causes  of  action  which  can  not  be  united.^^  Grantor 
with  warranty,  and  holder  of  an  incumbrance,  may  be  joined, 
to  obtain  satisfaction  of  such  incumbrance,  and  a  recovery  over 
for  any  amount  found  due  on  it.*^*^ 

§  1616.  Specific  personal  property.  Claims  for  the  recovery 
of  specific  personal  property,  with  or  without  damages  for  the 
withholding  thereof,  may  be  joined.^^  So  also  replevin  and 
fraud  may  be  united.^^ 

§  1617.  Specific  real  property.  Claims  to  recover  specific  real 
property,  with  or  without  damages  for  the  withholding  thereof, 
or  for  waste  committed  thereon,  and  the  rents  and  profits  on 
the  same  may  be  united.^^  A  complaint  in  ejectment  may  be 
for  two  separate  and  distinct  pieces  of  land,  but  the  carises  of 
action  must  be  separately  stated,  and  affect  all  the  parties  to 
the  action,  and  not  require  different  places  of  triaL^  Otherwise 
it  would  appear  that  the  old  form  of  declaring  in  ejectment  by 
separate  counts  is  no  longer  admissible.^ 

§  1618.  Specific  relief.  Claims  by  a  debtor  to  have  obliga- 
tions delivered  up  and  canceled,  and  an  account  of  the  securities 
pledged  for  them,  and  payment  of  the  overplus,  is  but  one  cause 
of  action. ^^  A  cause  of  action  for  reformation  of  mortgage, 
and  for  simultaneous  foreclosure,  may  be  united. ^'^  So,  suit 
against  indorser  for  liability  on  note,  and  for  decree  against 
mortgagor  foreclosing  the  mortgage,  may  be  united;*'^  and  a 

B9  Spier  V.  Robinson,  9  How.  Pr.  32.'>.  A  cause  of  action  for 
damages  for  broacli  of  a  contract,  and  one  for  specific  performance 
of  tlio  same  rontraot  mny  properly  bo  joined  in  the  same  complaint 
without  soparatoly  staf  ing  them.  San  Diego  Water  Co.  v.  San  Diego 
Flnmo  Co.,   lOS  Cal.  r.4n. 

CO  Wandle  v.  Turnoy,  r>  Duer.  001. 

ni  f'al.  Code  Civ.  Pro.,  §  427. 

fi2  Tr nobody  v.  Jaoobson,  2  Cal.  209. 

«3Cal.  Coile  Civ.  Pro..  §  427;  Sullivan  v.  Davis,  4  Cal.  291;  Hoff- 
man V.  Tuolumne  Water  Co.,  10  id.  413;  Gale  v.  Tuolumne  Water 
Co.,  14  id.  2.";  HotohkiRs  v.  Auburn  &  Koohester  R.  R.  Co..  .30  Barb. 
600;   Syornborpor  v.    Morjoyorn,  .^►O  X.   Y.   12;   Perry   v.    Ricliardson, 

27  Ohio  St.  no. 

«4  Rolos  V.  Kohon.  ir»  Cal.  l.''>0. 
ec  St.  .Tolm  v.  Pieroo.  22  Rarb.  .302. 

MCnhoon  v.  Raiil<  of  T'tira.  7  .\.  Y.  4S0;  S.  C.  7  How.  Pr.  401; 
reverslntr  id.  1.34. 
«7  Dopuyster  v.  Tlasbrouck.  11  N.  Y.  .^2. 
fls  Rollins  V.  Forbes,  10  Cal.  200;  Eastman  v.  Turman,  24  id.  382. 


^    1(519  FORMS    OF    COMPLAINTS.  838 

claim  to  reform  aii  assignment  in  part,  and  for  accounting  under 
it  when  reformed.*"^ 

i  1619.  Trespass,  lii  ^lassacliusetts,  under  trespass,  the  sev- 
t'lal  species  of  quarc  clausimi  and  dc  bonus  asportatis  may  be 
joined.'"  Counts  in  trespass  upon  the  case  may  be  joined  with 
a  count  in  trover.'^^  So,  a  cause  of  action  for  cutting  wood, 
and  also  one  for  the  conversion  of  wood,  may  be  combined.''^ 
A  eause  of  action  for  damages  for  a  trespass,  and  a  cause  of 
action  for  an  injunction  to  restrain  further  or  additional  tres- 
pass threatened  to  bo  committed  upon  the  same  property,  may 
be  joined;"  and  the  objection  that  they  are  not  separately  stated 
can  not  be  reached  by  demurrer  on  that  ground,  but  only  by 
motion,  unless  the  complaint  is  thereby  made  ambiguous,  un- 
intelligible, or  uncertain.'^''  Under  section  484,  subdivision  9, 
New  York  Code  of  Civil  Procedure,  a  cause  of  action  for  tres- 
pass upon  land,  and  a  cause  of  action  for  conversion,  of  personal 
proj^erty,  when  both  arise  out  of  the  same  transaction.,  may  be 
united."^^  A  complaint  setting  forth  two  causes  of  action,  one 
for  entering  upon  the  plaintiff's  land  under  water  and  taking 
and  carrying  away  fish,  the  other  for  a  like  entry  upon  the 
plaintiff's  land  and  catching  and  killing  animals  thereon,  states 
two  causes  of  action  for  injuries  to  real  estate,  which  may  be 
properly  joined.'^*'  The  additional  allegations  of  injuries  to  per- 
sonal property  are  not  statements  of  separate  causes  of  action, 
but  mere  averments  in  aggravation  of  the  wrongful  entry." 
Allegations  as  to  seduction,  in  a  complaint  for  breach  of  promise 
of  marriage,  are  merely  in  aggravation  of  damages,  and  do  not 
make  the  complaint  open  to  the  charge  of  embracing  two  causes 
of  action,  seduction  not  being  actionable  at  the  suit  of  the 
person  seduced.'^®     Counts  may  be  joined  in  the  same  declaration 

69  Gamer  v.  Wright,  2S  How.  Pr.  92. 

70  Bishop  v.  Balver,  If)  Pick.  517. 

71  Ayer  v.  Bartlett,  9  Piolj.  160. 

72  Bodffers  v.  Roclfjevs.  11  Barb.  595. 

73  .Tacob  V.  Lorenz.  98  Cat.  3.S2. 

74  Td. 

7.'5  T^olloy  V.  Wilkissoii,  5  Civ.  Pro.  Bep.  135. 

71  Whatlins  v.  Nash.  41  Hun,  .^79. 

77T(i.:  also.  fJllbert  v.  Pritchard,  41  Hun,  46;  btit  compare  Gunn 
T.  Fellows,  id.  2Tu. 

78Getzelson  v.  Bernstein,  37  N.  Y.  Supp.  220;  72  N.  Y.  St.  Rep. 
799. 


829  SEVERAL    CAUSES    OF    ACTION    UNITED,  §    lGil> 

for  malicious  prosecution  and  slanderJ^  A  complaint  in  an 
action  to  remove  a  cloud  on  title  is  not  obnoxious  to  the  objec- 
tion that  it  improperly  unites  several  causes  of  action  because  it 
sets  out  several  reasons  why  the  outsiandiug  title  is  invalid.''^ 
Nor  is  a  complaint  in  ah  action  by  a  principal  for  an  accounting 
from  an  agent  demurrable  for  misjoinder  of  different  causes  of 
action,  because  it  alleges  various  kinds  of  misconduct  on  the 
part  of  the  agent.®^  A  complaint  against  an  executor  individu- 
ally and  to  recover  a  deposit  of  purchase  money  paid  him  as 
executor  is  demurrable  for  misjoinder  of  parties  defendant  and 
for  misjoinder  of  causes  of  action.^^  A  joint  action  will  not 
lie  against  the  separate  owners  of  dogs  which  unite  in  destroy- 
ing the  property  of  a  third  person.  Each  owner  is  liable  only 
for  the  damage  done  by  his  own  dog,  and  not  for  that  which  is 
done  by  the  dogs  which  do  not  belong  to  him.^^ 

Te  Bible  v.  Palmer,  95  Tenn.  393.     Or  for  false  Imprisonment  and 
slander.     De  Wolfe  v.  Abraham,  39  N.  Y.  Supp.  1029. 

80  Day  V.  Schnider,  28  Oreg.  457. 

81  Lumber  Co.  v.  Reynolds,  111  Cal.  588. 

82  Schllcker  v.  Hemenway,  110  CaJ.  57». 

83  State,  etc.  v.  Wood  (Sup.  Ct.  N.  J.),  35  Atl.  Rep.  654 


subdiyisio:n'  fifth. 

FOR  DAMAGES  UPON  WRONGS. 


PART  FIRST  — FOR  INJURIES  TO  THB  PERSON. 
CHAPTER  I. 

FOR   ASSAULT  AND   BATTERY. 

S    1620.    Common  form. 

Form  No.  413. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18 . .,  the 

defendant  violently  assaulted  the  plaintiff,  and  struck  him  [state 
where]  several  blows,  and  also  tore  the  clothes  from  the  plain- 
tiff's person  [describe  the  violence  used,  and  its  consequences]; 
to  his  damage dollars. 

Wherefore  the  plaintiff  demands  judgment  for 

dollars,  his  damages  aforesaid. 

§  1621.  Abatement  of  action.  Action  for  assault  and  battery 
can  only  ])e  brought  in  the  name  of  the  party  immediately  in- 
jured, and  if  he  dies  the  remedy  determines.-^  This  is  the  rule 
at  common  law,  but  is  changed  by  the  statutes  of  many  of  the 
states.  And  for  injuries  committed  on  the  wife  by  battery, 
husband  and  ^vife  must  join;  and  if  she  die  before  judgment  the 
suit  abates.^  But  if  the  wife  dies  after  judgment,  the  judgment 
survives  to  the  husband.' 

§  1622.  Assault  defined  —  instances.  An  assault  is  an  unlaw- 
ful attempt,  coupled  with  a  present  ability,  to  commit  a  violent 
injury  on  the  person  of  another.*    An  assault  is  an  offer  to 

1 1  Chit.  PI.  60. 

a  1  Chit.  PI.  73. 

3  Stroop  V.  Swarts.  12  Serg.  &  R.  76. 

*  Cal.  Pen.  Code,  §  240;  see,  also,  State  v.  Sears,  86  Mo.  169;  Stivers 
V.  Baker,  87  Ky.  508;  Chapman  v.  State,  78  Ala.  463;  56  Am.  Rep. 
42. 


831  FOR   ASSAULT    AND    BATTERY.        §§    1633^    1634: 

strike,  beat,  or  commit  an  act  of  violence  on  the  person  of 
another,  without  actually  doing  it  or  touching  his  person;*^ 
striking  at  a  person  with  the  hand  or  with  a  stick,  or  by  shak- 
ing the  fist  at  him,  or  presenting  a  gun  or  other  weapon  witliin 
such  a  distance  as  that  a  hurt  might  be  given,  or  drawing  a 
sword  and  brandishing  it  in  a  menacing  manner,  provided  the 
act ,  is  done  with  intent  to  do  some  corporal  hurt.®  The 
drawing  of  a  pistol  on  another,  accompanied  by  a  threat  to 
use  it  unless  the  other  immediately  leave  the  spot,  is  an  assault, 
although  the  pistol  is  not  pointed  at  the  person  threatenedJ 
Cocking  and  raising  a  gun,  and  threatening  to  shoot  a  person, 
when  the  act  indicates  an  intention  to  shoot;*  or  raising  a  club 
over  the  head  of  a  woman  within  striking  distance,  and  threat- 
ening to  strike  her  if  she  opens  her  mouth,  are  assaults.^  So 
also  to  double  the  fist  and  run  it  at  another,  saying:  "  If  you 
do  that  again  I  will  knock  you  down."^^  So  the  mere  taking 
hold  of  the  coat,  or  laying  the  hand  gently  on  the  person  of  an- 
otlier,  if  done  in  anger,  or  in  a  rude  and  insolent  manner,  or 
with  a  view  to  hostility,  amounts  not  only  to  an  assault,  but 
to  a  battery.^^ 

§  1623.  Assault  and  slander.  A  plaintiff  may  aver  in  his 
complaint  all  that  took  place  at  the  time,  though  a  part  con- 
stitute an  assault,  and  part  a  slander,  and  recover  damages 
which  he  has  sustained  for  the  compound  injury. ^^ 

§  1624.  Avoiding  injury.  To  recover  damages  for  an  assault 
and  battery,  it  is  not  necessary  that  the  plaintifl"  should  have 

B  .Johnson  v.  Thompkins,  1   Raldw.  571.  GOO. 

a  United  States  v.  Oi-tesa.  4  Wash.  C.  C.  .534;  United  Slates  v. 
Hand.  2  Id.  4.35;  State  v.  Martin,  85  N.  O.  508;  39  Am.  Rep.  711; 
Ilairston  v.  State.  .54  Miss.  OSO. 

^  People  v.  MoMaldn.  S  Cal.  .547. 

8T'nitf>d  States  v.  Kionnan,  3  Cranrh  O.  O.  435. 

ei'nited  States  v.  Kifliardson,  5  Cranr-h  C,  O.  348. 

10  T'nited  States  v.  >re.vers,  1  Cranch  C.  C  310. 

n  Ignited  States  v.  Ortega,  4  Wash.  C.  C.  534.  Furtlior  illustra- 
tions. See  Clark  v.  Downing,  .55  Vt.  2.5!);  45  Am.  Rep.  fil2;  Cooper 
r.  MrKenna,.  124  Mass.  2S4;  2«  Am.  Rep.  667;  Dyk  v.  T)e  Younp, 
3K  111.  App.  138;  Goo<lruni  v.  State,  60  Ga.  509.  Ttidiiij,'  a  hioycle 
apainst  one  on  a  sidewalk  in  a  rude'  and  reckless  manner  is  an 
actionable  assault.  Mercer  v.  Corbin,  117  Ind.  450;  10  Am.  St.  Rep. 
7fl. 

13  Brewer  v.  Temple,  15  How.  Pr.  280. 


§§    Ui'v'o-ll)28  FORMS  .OF    COMPLAliNTS.  83JJ 

Hod  to  avoitl   llie   injury,   il'  lie   used   oidinary  eare  to  prevent 
injury,  and  it  ensued  from  the  wrongful  aet  of  the  defendant.^^ 

§  1625.  Battery  defined.  A  battery  is  any  willful  aiid  unlaw- 
ful use  of  force  or  violence  upon  the  person  of  another. ■^■*  A 
battery  is  the  toueliing  or  commission  of  any  actual  violence  on 
the  person  of  another  in  a  rude  and  angry  nianner.^^ 

§  1626.  Damages.  In  cases  of  aggravated  assault,  the  jui'y 
are  permitted  to  give  exemplary  or  punitive  damages.^^  An  em- 
ployer, though  not  present,  and  in  no  manner  consenting  to 
or  aiding  the  assault,  is  liable  for  the  actual  damage  sustained 
in  an  assault  upon  the  person,  committed  by  his  servants  or 
employees,  while  in  the  performance  of  their  duties  as  such." 

§  1627.  Malice.  The  language  of  the  defendant  while  com- 
mitting the  assault  is  admissible  in  evidence,  for  the  purpose 
of  characterizing  the  act  as  bearing  on  the  question  of  malice.^® 

§  1628.  Assault  by  master  of  vessel.  A  master  or  commanilcr 
of  a  vessel  is.  in  general,  not  liable  to  an  action  for  assault  and 
battery,  for  chastisement  inflicted  upon  a  seaman  or  marine, 
where  he  acted  under  a  sincere  conviction  that  it  was  necessary 
to  enforce  discipline  or  compel  obedience  to  orders,  and  not 
from  passion  or  revenge.^^  So,  where  a  master,  believing  there 
is  immediate  danger  of  mutiny,  makes  use  of  a  dangerous  or 
deadly  weapon  to  reduce  a  seaman,  actually  in  mutiny,  to  obedi- 
ence, he  is  not  liable.-^  Seamen  are  generally  entitled  to  re- 
cover damages  for  an  assault  and  battery  from  the  officer  of  a 

13  Heady  v.  Wood,  0  Ind.  82. 

uCal.  Penal  Code.  §  242. 

15  Johnson  v.  Tompkins,  1  Baldw.  .^71.  fiOO. 

i«  Drohn  v.  Brewer,  77  111.  280;  ?>3  Mirh.  4!);  20  Am.  Rep.  668; 
Wilson  V.  Middleton,  2  Cal.  .^4;  Wade  v.  Thayer.  40  id.  .^»78;  see,  also, 
Wheaton  v.  N.  B.  &  M.  R  R.  Co.,  36  id.  .590:  Shea  v.  P.  &  B.  V. 
R.  R.  Co.,  44  id.  414;  Webb  v.  Oilman,  80  Me.  177;  Lavery  v.  Crooke, 
52  Wis.  612;  .38  Am.  Rep.  768. 

17  Wade  V.  Thayor.  40  Cal.  .578. 

iSMcDouffall  V.  MeOulre,  nr>  Cal.  274;  0.5  Am.  Deo.  9S;  Brzezinski 
T.  Tiemey,  flO  Conn.  5.5. 

isDin.sman  v.  WHkes.  12  Ho\^^  (U.  S.)  .'',00;  oompare  United  States 
T.  Freeman,  4  Mason,  .505:  Thompson  v.  Bnsch,  4  Wasli.  C.  C.  .%S. 

20Rol)prts  v.  Eldridse,  1  Si)raffue,  .54;  TTiiited  St.atos  v.  Colby,  id. 
119;  Fnited  States  v.  Lunt,  id.  .311.  As  to  what  will  justify  coriwral 
punishment  of  sf-amen,  see  Morris  v.  Cornell.  1  Sprapuo.  62;  Payne 
V.  Allen,  Id.  304;  Sheridan  v.  Furbur,  1  Blatchf.  &  H.  423. 


833  FOK   ASSAULT   AND    BATTERY.         §§    1639-1631 

fchip:  1.  Where  a  personal  violence  is  mtiieied  wantonly,  and 
without  provocation  or  cause;  2.  Where  there  was  provocation 
or  cause,  but  the  punishment  was  cruel  or  excessive;  3.  Usually 
where  the  punishment  is  inilicted  with  a  dangerous  or  deadly 
weapon.^^ 

§  1629.  Principal.  One  who  is  present  and  encourages  an 
assault  and  battery  is  a  principal.^- 

§  1630.  Provocation.  Xo  words  of  provocation  w^ill  justify 
an  assault,  although  they  may  constitute  a  ground  for  the  reduc- 
tion of  damages.^^ 

§  1631.  When  action  lies.  Assault  and  Ijattcry  will  lie 
against  a  steamboat,  for  an  assaidt  and  battery  committed  by 
the  mate  or  other  officer  of  the  boat,  on  the  person  of  a  passen- 
ger, while  such  boat  is  being  navigated  on  the  rivers  within  or 
l)ordering  on  the  state.^*  Assault  and  battery  lies  for  injury  to 
the  relative,  as  for  beating,  wounding  and  imprisoning  a  wife 
or  servant,  by  which  the  plaintiff  has  sustained  a  loss.^  So 
wliere  the  battery,  imprisonment,  etc.,  were  in  the  first  instance 
lawful,  but  unnecessary  violence  was  used.-^  One  is  guilty  of 
assault  and  batt-ery-  who  delivers  to  another  a  thing  to  l>e  eaten, 
knowing  that  it  contains  a  foreign  substance  —  as  cantharides — 
and  concealing  tlio  fact,  if  the  other,  in  ig-norance  of  the  fact, 
eats  it.  and  is  injured  in  bealtli.^  Acts  mala  prohihita  do  not 
become  mala  in  sc.  unless  done  willfully  and  corruptly.  One 
who  drives  over  another  in  negligence  merely,  is  not  rendered 

21  Forbes  v.  Parsons.  Crabbo,  2H?,:  ooniparo  Dinsiiiiin  v.  Wilkos, 
12  How.  (U.  S.)  300.  For  the  law  frovernin.a:  sueli  liability,  see 
V.  S.  Rev.  Stnt.  at  L.,  §  .".347. 

22  Coats  T.  DarT)y.  2  X.  Y.  517;  .'>  Ohio.  2r^0■.  Fnitod  Statos  v. 
KifkPtts,  1  Cranch  C.  C.  104. 

2Tusliiiian  V.  K.van,  1  Story.  01:  Srolt  v.  Floinintr.  1<'>  III.  App. 
.",30:  Smith  v.  Rairwell.  10  Fla.  117;  4.".  Am.  Hep.  12:  Kci<!  v.  Siato, 
71  rja.  SO.^.. 

24  Lay  v.  Steamboat,  etc..  2S  111.  412:  Si   Am.  Dec  21)2. 

2-'"'0  Co.  113:  10  i«i.  1.30:  Bland  v.  Drako.  1  Chit.  Kh:  Fluker  v. 
r.ankinjr  Co.,  SI  C.a.  401:  12  Am.  St.  Kci'-  •''-•'^:  Hanicl  v.  Sw<'an'nf;cn. 
f'<  S.  C.  207;  24  Am.  licp.  471.  ^Vllon  not  nn(l(M'  the  rolor  of  process, 
See  11  Mo<l.  ISO;  Sfhmcider  v.  Mr-Fane.  30  Barb.  40"i. 

2«1  Chit.  T'l.  107:  Poaso  v.  Bni-t.  3  Fay.  4S.''>:  Flliott  v.  Brown.  2 
Wonfl.  407;  20  Am.  Dec.  044;  Boles  v.  Fiiilccitoii.  7  Dana.  4:13:  Han- 
nen  v.  Fdcs,  1."  :Ma-s.  347;  Bennett  v.  .\i)i)!ctoii.  2.">  Wend.  371. 

27  Commonwealth  v.  Stratton.  114  INIass.  303;  10  Am.  Rep.  350. 

Vni..  T— 105 


^g  1G32-1G35  FORMS  of  complaints.  834 

"uilty  oi'  ii  criiniual  at-j^ciult  and  baliory  by  the  fact  that  he  docs 
so  while  viokvtiug  a  city  ordinance  against  last  driving.^^ 

§  1632.  Willful,  malicious.  It  is  not  necessary  in  aa  action 
for  a  simple  ai-sault  and  battery  to  charge  in  temis  that  it  was 
"  Avillful  "  or  *•  malicious  "  to  entitle  the  plaintifl:  to  maintain 
his  action.-'-* 

§    1633.   The  same  —  short  form- 

Form  No.   414. 
[Title.] 
The  plaintiff  complains,  and  alleges:  , 

I.  That  on  the    day  of    ,   18..,  at 

the   ,  the  defendant  assaulted  and  beat  him,  to 

his  damage  dollars. 

[Demand  of  Judgment.] 

§  1634.  Married  woman,  allegation  of  assault  by. 

Form  No.  415. 
That  on  the day  of  ,  18.  .,  the  de- 
fendant C.  E.,  she  being  then,  as  now,  the  wife  of  the  defendant 
E.  F.  [continue  as  in  preceding  form]. 

§    1635.   The  same  —  with  special  damages. 

Form  No.  416. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That   on  the    day   of    ,   18 .  . ,   at 

,  the  defendant  assaulted  and  beat  the  plaintiff 

until  he  became  insensible. 

IT.  That  the  plaintiff  was  thereby  disabled  from  attending 
to  his  business  for  weeks  thereafter,  and  was  compelled  to  pay 

dollars  for  medical  attendance,  and  has  been  ever 

since  disabled  [from  using  his  left  arm;  or  otherwise  state  the 

damage,  as  the  case  may  be],  to  his  damage dollars. 

[Demand  of  .Tudcaient.] 

28  Commonwealth  v.  Adams.  114  Mass.  328:  19  Am.  Rep.  362.  An 
action  for  assnult  ;ind  1>atter.v  will  lie  asninst  nn  infant.  Peterson  v. 
Iloffner.  .-►()  Ind.  1.80;  2(\  Am.  Rep.  81;  Vosburji  v.  Putnay.  80  Wis. 
523;  27  Am.  St.  Rep.  47. 

29  Andrews  v.  Stone,  10  IVPrnn.  72;  Sloan  v.  Speaker,  63  Mo.  App. 
321. 


835  FOR    ASSAULT    AND    BATTERY.  §§    1636-1G37 

§  1636.  Against  a  corporation  for  damages  caused  by  an  as- 
sault and  forcible  ejection  from  a  car. 

Form  No.  417. 

[Title.] 

The  plaintiti'  complains,  and  alleges: 

I.  That  at  the  time  hereinafter  mentioned,  the  defendant 
was,  and  now  is  a  corporation,  duly  organized  under  and  pur- 
suant to  the  laws  of  this  state,  and  was  the  owner  of  a  certain 

railroad  known  as  the railroad,  ^v^th  the  tracks, 

cars,  and  other  appurtenances  thereunto  belonging,  and  was  a 
common  carrier  of  passengers  from to 

II.  That  on  the   day  of    ,   18..,  at 

,  the  defendant  with  unnecessary  violence  assaulted. 

the  plaintiff  and  forcibly  ejected  him  from  one  of  its  cars. 

III.  That  the  plaintiff  was  thereby  disabled  from  attending 

to  his  business  for weeks  thereafter,  and  has  ever 

since  been  disabled  from  using  [his  left  foot  or  othenvise],  and 
was  compelled  to  pay dollars  for  medical  attend- 
ance, to  the  damage  of  the  plaintiff dollars. 

[Demand  of  Judgment.] 

§  1636a.  Alleging  the  facts.  It  is  held  that  in  an  action 
to  recover  damages  for  an  assault,  the  complaint  or  petition  must 
allege  tlie  facts  which  constitute  the  assault,  and  that  it  is 
not  sufficient  to.  allege  that  the  defendant  unlawfully  "as- 
saulted" the  plaintiff,  what  constitutes  an  assault  being  a 
question  of  law  for  ^he  court.^*^  On  the  other  hand,  a  general 
allegation  tliat  the  defendant  "  assaulted  "  the  plaintiff,  stand- 
ing alone,  has  ])een  held  sufficient.^^ 

§  1637.  Conductor  of  car.  Tlie  right  of  a  car  conductor  on 
a  railroad  to  expel  a  ])assenger  for  nonpayment  of  the  fare,  must 
be  exercised  in  such  a  manner  as  is  consistent  with  the  safety 
of  the  pa.ssenger's  life.  Ho  must  first  stop  the  car,  and  if  he 
attempts  to  eject  him  without  stopping  tlio  car,  the  passenger 
has  the  same  right  to  repel  fhe  attempt  flint  he  has  to  resist 
a  direct  aftcmpt  to  take  his  lifo.32    Although  a  person  may  be 

30  Rtivers  v.  P.alcer.  S7  Kv.  r^OR. 

31  Mltflidl  V.  Mitflioll,  45  Minn.  .^/);  soe.  also,  Brzezinski  v.  Tler- 
npy.  on  Ponn.  ^^T>. 

32SPO  Ranford  v.  Eighth  Avenue  R.  R.  Co.,  23  N.  Y.  343:  80  Am. 
Deo.  286. 


s^§    lt.io6-lU4:3  I'OKxMti    01-'    COMl'LAiMTti. 


63G 


wroni^luU}-  upon  the  cars,  the  conductor  must  use  reasonable 
care  and  prudence  in  removing  liim.^^ 

§  1638.  Corporation.  An  action  of  trespass  for  assault  and 
battery  will  lie  against  a  corporation,  if  it  lia^  power  to  authorize 
tlie  act  done,  and  has  done  so;  and  a  servant  of  the  compajiy 
may  be  ioined  as  a  defendant.^'* 

§  1639.  Damages.  \i\  cases  of  injury  to  the  person  from 
negligence  of  a  conductor  of  a  car,  the  law  does  not  prescrrbe 
any  lixed  or  definite  rule  of  damages,  but  from  necessity  leaves 
their  assessment  to  the  good  sense  and  unbiased  judgment  of 
the  jury.^^ 

§  1640.  Exemplary  damages.  A  railroad  company  may  be 
charged  with  exemplary  damages  for  injuries  done  with  force 
or  malice  to  a  passenger  by  a  conductor  of  said  company.*^^ 

§  1641.  Master  and  servant.  The  master  is  liable  for  the 
servant,  if  he  acts  within  tlie  scope  of  liis  authority.^"  The 
relation  of  conductor  on  a  car  and  the  company  for  whom  he 
is  acting  as  conductor  is  that  of  master  and  servant,  and  the 
relation  being  established,  all  else  is  mode  and  manner,  and 
as  to  that  the  master  is  responsible.^^ 

§  1642.  Forcible  ejection.  If  a  person  be  of  mature  years, 
the  mere  words  of  the  driver,  ordering  him  to  get  off,  could 
not  be  regarded  as  a  forcil)le  ejection  of  the  plaintiff  from  the 
car  at  a  time  when  it  was  dangerous  to  leave  it;  but  if  a  child 
of  ten  years  of  age  was  so  ordered,  his  obedience  w^ould  be 
naturally  expected,  without  regard  to  the  risk  he  might  incur, 
and  in  respect  to  a  child  so  young  the  command  would  bo 
equivalent  to  compulsion. ^^ 

33  Kline  V.  O.  P.  R.  Jl.  Co..  .37  Cal.  400:  09  Am.  Deo.  282. 

34  Brokaw  v.  N.  .7.  R.  &  T.  Co.,  .32  N.  ,T.  L.  .328;  00  Am.  Dec.  659; 
National  Bank  v.  Graham.  100  TT.  S.  702. 

3''>Alflrioh  V.  Palmer,  24  Cal.  ,513;  cited  in  Whoaton  v.  N.  B.  & 
M.  R.  R.  Co.,  30  id.  590. 

36  Baltimore  &  Ohio  R.  R.  Co.  v.  Bloohor,  27  Md.  277;  see  Hamil- 
ton V.  Railway  Co..  17  Mont.  .3.34. 

37  Kline  v.  O.  P.  R.  R.  Co.,  37  Cal.  400;  90  Am.  Dec.  282. 
3RId. 

39'Tx)vett  V.  R.alem  &  South  Danvers  R.  R.  Co.,  9  Allen  (Mass.), 
.501:  r-ited  in  Kline  v.  Central  Parifie  R.  R.  Co.  of  California.  37  Cal. 
400;  99  Am.  Dec.  282,  where  it  jroes  on  to  state:   "  We  have  no  doubt 


L 


837  FOR    ASSAULT    AND    BATTERY.         §§    1643,    1644 

§  1643.  Mutual  negligence.  If  the  plaintiH'  be  in  the  wrong, 
yet  if  his  wrong  or  negligence  is  remote  —  tliat  is,  does  not  im- 
mediately accompany  the  transaction  from  which  his  injury- 
resulted  —  tlie  defendant  can  not  excuse  himself  on  the  score 
of  mutuality,  nor  absolve  himself  from  his  oblig^ition  to  exer- 
cise reasonable  caxe  and  prudence  in  what  he  may  do-."***  So  the 
entry  on  a  car,  if  an  accomplished  fact,  is  only  a  remote  cause 
of  the  injury  inflicted  by  a  subsequent  ejection  from  the  car; 
nor  did  it  absolve  the  conductor  from  the  duty  of  observing 
reasonable  care  and  prudence  in  putting  him  off  the  train.'*^ 
Mutual  or  co-operating  negligence,  which  deprives  one  party 
of  any  right  of  action  against  the  other,  is  when  the  act  which 
produced  the  injury  woidd  not  have  occurred  but  for  the  com- 
bined negligence  of  both.  But  where  the  negligence  of  one 
party  would  produce  injury  in  any  event,  with  or  without  the 
negligence  of  the  other,  then  it  becomes  a  mere  question  of 
adjustment  of  damages.^  Where  negligence  exists  on  lioth 
sides,  that  of  the  plaintiff  must  have  contributed  to  the  injury, 
or  it  will  not  excuse  the  defendant.^^ 

§  1644.  Removing  trespassers.  A  man  can  not  lawfully  push 
another  off  from  liis  land  without  first  requesting  him  to  got 
off.^*  But  mechanics  in  charge  of  a  house  which  they  are 
Ituihling  have  a  right  to  remove  gently  persons  coming  into  the 
building  without  authority,  if  iliey  ■will  not  depart  npon  re- 
quest.^''' The  abuse  of  legal  authority  which  will  make  a  ]ierpon 
a  trespasser  ab  initio,  is  the  abuse  of  some  special  and  ]"Kirticular 
authority  given  by  law;  and  the  doctrine  does  not  apply  to  the 
case  of  an  agent  in  a  factorv  who  uses  improper  force  in  eject- 
ing a  disorderly  person  employed  there.''" 

that  in  r-ase  n  show  or  df-monstration  of  foroo  siifflripnl  to  impress 
a  rpasonab]*'  person  witli  the  beliof  that  it  will  Ix^  eni])loy(>(l,  must 
be  lif'hl  to  be  the  oqnivnlpnt  of  ar-tnal  force." 
40K]inp  V.  r.  P.  T{.  T!.  Co..  P,7  Cal.  400;  (10  ,\m.  Dec.  282. 

41  Id. 

42  Thomas  v.  Konyon.  1  Dnly,  ^P,2. 
43Haloy  V.  Earle.  .''.O  X.  Y.  20S. 

44  Thompson  v.  BeiTy,  1  rrnnu-h  O.  C.  4.';  ro(>  ChapoH  v.  Sclunidt, 
104  Pal.  .'.ll. 

4"5  T'nited  ."States  v.  P.nrtle.  1   Trancli  C.  C.  2.10. 

4fl  Esty  V.  Wilmot,  1."  C,r;\y.  1f;s.  An  odiccr  who  mnkos  m  lojrnl 
arrest  r-an  not  l)o  hold  liablo  for  assnnlt  and  battei*y  whore  tlio  evl- 
donre  fails  to  show  that  he  ns^nl  nnncz-ossary  forc(\  Raker  v. 
Barton,  1  Col.  App.  183. 


§§  1045-1648  I'ORMS  OF  comi'laints.  838 

$   1645.   Assault  and  false  imprisonment  —  short  form. 

I'orni  No.  41S. 

[Title. J 
The  plaint  ill'  complains,  and  alleges: 

I.  That  on  the    ilay  of    ,   18 . . ,  the 

defenchmt  assaulted  and  beat  the  plaintiff,  and  imprisoned  him 

for houi-s,  to  his  damage   dollars. 

[Demand  of  Judgment.] 

§  1646.  Arrest.  The  circumstances  of  the  arrest  should  not 
be  set  out  in  the  complaint.  If  so  set  forth,  they  may  be 
stricken  out  upon  niotion.^''^ 

§  1647.  Circumstances.  Allegations  of  the  circumstances  in 
detail  on  a  charge  of  false  imprisonment  and  assault,  in  con- 
nection ■\Wth  an  illegal  combination  and  conspiracy,  were  al- 
lowed in  a  great  measure  to  stand.^^ 

§    1648.   The  same  —  fuller  form. 

Form  No.   419. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18.  .,  the 

defendant  assaiilted  the  plaintiff,  and  charged  him  with  [state 
what  offense],  and  gave  him  into  the  custody  of  a  policeman, 
and  forced  and  com]wlled  him  to  go  to  a  police  station,  and 
there  caused  him  to  be  imprisoned,  and  caused  him  to  be  kept 
in  prison  for  a  long  time,  until  he  was  afterwards  brought  in 

custody  before  one  of  the  police  magistrates  of , 

and  the  defendant  then  again  charged  him  with  the  said  offense; 
but  the  said  magistrate  dismissed  the  said  charge,  and  caused 
him  to  be  discharged  out  of  custody. 

II.  That  the  plaintiff  thereby  suffered  damage  in  the  amount 
of dollars. 

[Demand  of  Jfdgmext.] 

47  Eddy  V.  Beach,  7  Abb.  Pr.  17:  Shaw  v.  Jayne,  4  How.  Pr.  119. 

48  Molony  v.  Dows,  15  How.  Pr.  261. 


CHAPTEK  II. 

FOE  FALSE  IMPKISOXMENT. 

$   1649.    Common  form. 

Form  No.  420. 
[Title.] 
The  plaintilt'  complains,  and  alleges; 

I.   That  on  the    day   of    ,   18..,   at 

,  the  defendant  imprisoned  him  for   

days   [or  hours,  as  the  case  may  be],  without  probable  cause 
[state  special  damages,  if  any],  to  the  damage  of  the  plaintiff 

dollars. 

[Demand  of  Judgment.] 

§  1650.  Arrest  without  proof.  A  person  who  without  bad 
faith  or  malice  has,  upon  oath,  or  otherwise,  merely  stated  his 
case  to  a  magistrate  having  jurisdiction  of  the  offense  supposed 
to  have  been  committed,  and  of  the  person  accused,  is  not  liable 
to  an  action  for  false  imprisonment  upon  the  consequent  arrest 
of  the  accused,  althougb  such  arrest  is  not  warranted  by  the 
law  or  the  facts  in  the  case.^ 

§  1651.  Circumstances  of  arrest.  The  particular  instrumen- 
tality by  which  the  plaintiif  wa.'^  deprived  of  his  liberty  should 
not  be  set  out  in  the  complaint.  If  the  circumstances  of  the 
arrest  are  set  forth,  they  may  be  struck  out  upon  motion.^ 

§  1652.  Corporation.  A  corporation  may  be  sued  in  trespass 
for  false  imprisonment.^ 

1  Von  I-afham  v.  T.ihby.  ?,9,  Barb,  .'^.'^n;  oitlnp:  Carratt  v.  ISIoroly. 
1  A.  fi  K.  CS.  S.)  IS;  Bnrher  v.  Hollinsnn,  1  C.  &  M.  .330;  West  ^. 
Sninllwood  3  M.  &-  W.  418;  r,  yU\n..  n.  &  S.  .3(;.':  22  Wend.  V.2:  nnd 
disapi.rovintr  Pfmifort  v.  Fnltoii,  13  Abb.  Pi-.  270;  Livingston  v. 
BiHTrnijrhs,  .33  Micli.  !-.11. 

2  Kddy  V.  Hear-li.  7  Al'l..  I'r.  17:  Sli:iw  v.  .Tnvn(>.  J  ITn\v.  Pr.  110. 
As  to  what  pxtpnt  snrh  .nllopatlons  ;ir<'  nllowcd  I0  st.iiid,  s(>o 
Molony  v.  Dows.  1'^  How.  Pr.  2r>r,. 

3  Owsley  V.  Montnonierj'  &  W.  I'.  I{.  I{.  Co..  37  Ala.  ."(io;  (Jilling- 
hain  V.  Railroad  Co..  3.'.  W.  Va.  .'SS;  'J[)  Am.  St.  Kcp.  827;  Lynch  r. 
Railway  Co.,  90  N.  Y.  77;  43  Am.  Hop.  141. 


§§    U):)3-ll)57  FORMS   OF   COMPLAINTS.  840 

S  1653.  Election  of  remedy.  A  j)laiuliir  liaa  au  eleclioil  of 
remedy  between  aii  action  for  I'also  iniprisonniont  and  malicious 
prosecution,  where  either  form  is  admissible.* 

§  1654.  False  imprisonment  defined.  Falso  imprisonment  is 
the  unlawful  violation  of  the  personal  liberty  of  another.'^  As 
a  crime,  false  imprisonment  is  not  a  felony  under  the  laws  of 
California.® 

§  1655.  False  imprisonment,  what  it  avoids.  One  who  ob- 
tains possession  of  pei"isonal  property  by  threat  of  wrongful 
imprisonment  acquires  no  title,  and  such  transaction  is  void.'^ 
Error  of  judgment  on  the  part  of  the  magistrate  will  not  render 
the  process  issued  by  him  void.^ 

§  1656.  Malice.  Malice  and  falsehood  are  essential  ingre- 
dients in  an  action  for  malicious  prosecution,  but  are  not  essen- 
tial to  an  action  for  false  imprisonment,  in  which,  however,  the 
element  of  want  of  probable  cause  is  necessary.^ 

§  1657.  Principal  and  agent.  Where  a  private  person  takes 
any  part  in  the  unlawful  imprisonment  of  another,  he  becomes' 
a  principal  in  the  act,  and  is  liable  for  the  trespass;  but  where 
he  merely  communicates  facts  or  circumstances  of  suspicion  to 
officers,  leaving  them  to  act  upon  them  on  their  own  judgment 
and  responsibility,  he  is  not  liable. ^°  A  shopkeeper  is  not  liable 
for  the  act  of  his  superintendent  and  clerks,  in  calling  a  police- 
man and  causing  tlie  arrest  and  search  of  a  woman  suspected 
of  stealing  goods,  if  done  without  his  authority,  express  or 
implied.^^ 

4  Yon  Latham  v.  Libby  et  al.,  38  Barb.  339;  17  Abb.  Pr.  237;  Brown 
V.  Chadsey,  39  Barb.  2.">3. 

5  Cal.  Ponal  Code,  §  2.3r>;  see,  also,  State  v.  Lunsford.  81  N.  C.  528. 

6  People  V.  Ebner,  23  Cal.  158. 

7  Richards  v.  Yanderpoel.  1  Daly,  71. 

8  Von  Latham  v.  Llbby,  38  Barb.  339;  17  Abb.  Pr.  237. 

9  Piatt  V.  Niles,  1  Edm.  2.30.  INLalice  will  generally  be  inferred 
from  the  want  of  probable  cause,  at  least  so  far  as  to  sustain  the 
action.    McCarthy  v.  DeArmit,  99  Penn.  St.  (53. 

i"7  Car.  &  P.  373;  Burns  v.  Erben,  26  How.  Pr.  273;  Brown  v. 
Chadsey,  39  Barb.  2.53;  Lark  v.  Band,  4  Mo.  App.  186;  Taaffe  V. 
Slevin,  11  Mo.  App.  .507. 

11  Mall  V.  Lord,  39  N.  Y.  381;  100  Am.  Dec.  44a 


841  FOR    FALSE    IMPEISONMENT.  §§    1658-1663 

§  1658.  Sufficient  averment.  In  order  to  sustain  a  charge  for 
false  iniprisoumeut,  it  is  not  necessary  for  tiie  plaintitf  to  sliow 
tliat  tJie  defendant  used  violence,  or  laid  hands  on  liim,  or  shut 
him  up  in  a  jail  or  prison;  but  it  is  sufficient  to  show  that  the 
defendant,  at  any  place  or  time,  in  any  manner  restrained  the 
plaintiff  of  his  liberty,  or  detained  him  in  any  manner  from 
going  where  he  wished,  or  prevented  him  from  doing  what  he 
desired. ^^ 

§  1659,  Void  process.  One  who  procures  the  arrest  and  im- 
prisonment of  another  upon  void  process,  is  liable  in  an  action 
for  false  imprisonment;  and  mere  good  faith  in  mailing  the 
affidavit  by  virtue  of  which  the  arrest  is  inade,  is  no  defense.^^ 

§  1660.  Want  of  jurisdiction.  Where  one  is  arrested,  tried, 
and  convicted  of  an  act  which,  if  it  were  an  oll'ense,  was  one 
of  which  the  court  had  no  jurisdiction,  his  imprisonment  can 
not  afterwards  be  justified  by  showing  that  the  evidence  at  the 
trial  would  have  convicted  him  of  another  oll'ense  which  was 
triable  in  that  court.-^^ 

§  1661.  Where  and  when  action  lies.  Though  the  original  ar- 
rest be  warraiitalile,  an  action  for  false  imprisonment  lies  for 
any  subsequent  oppression  or  cruelty. ^^  Actions  for  malicious 
prosecution  require  different  rules,  both  of  pleading  and  evi- 
dence, and  are  essentially  distinct. ^^  "Where  imprisonment  only 
is  complained  of,  tlie  action  is  for  false  imprisonment.^^ 

§  1662,  Who  liable.  Where  a  person  has  been  arrested  npon 
a  criminal  charge,  witliout  any  competent  evidence  of  liis  guilt, 

12  Hawk  V.  Ridffway,  33  111.  473;  Harkins  v.  State,  0  Tex.  App. 
452.  Neither  malice  nor  want  of  proliable  cause  need  be  proved 
to  sustain  the  aetion.  Evidence  tendinj;  to  shoAv  that  the  plaintiff 
was  restrained  of  liis  liberty  at  tlic  dcfcnflniit's  instance,  by  n^asoTi 
of  jirocoss  wlilch  the  niasi.'^trate  had  no  authority  to  issue,  is  suffl- 
oient.    Boeper  v.  Lansenl)er^',  07  Mo.  P,m:  10  Am.  Rt.  Rop.  322. 

13  Painter  v.  Ives,  4  Neb.  122;  Ilallock  v.  Domlny,  14  N.  Y.  Sup. 
Ct.  r>2:  Sheldon  v.  Hill.  .33  Mich.  171. 

i4AVait  V.  rjroen.  r>  Park.  Cr.  IS".. 

m  1  T.  P.  .'30:  Esp.  Disr.  .332:  Doylo  v.  Pnssell.  30  Barb.  300. 

ifl  Brown  v.  riiadsey.  .30  Bar1>.  2r)3.  A  cause  of  action  for  malic- 
ious prosccntion  and  one  for  falso  impriRoiinicnt  may  be  miited  In 
the  samn  complnint.  Alarks  v.  Townsond.  97  N.  Y.  590;  Castro  v. 
Frlarte.  2  Pi  v.  Pro.  P.  210. 

17  Burns  v.  Erben.  26  How.  Pr.  273, 
100 


§§    IGGo-UiG-ill  iUKMiS    Ui''    COMI'LAINTS.  H-i'Z 

the  iiiagistniU^  and  prosoculor  arc  jointly  liable  to  an  action  for 
false  ijupri^^onment.^'^ 

g    1663.   The  same  —  another  form. 

For)n  No.   421. 

[Title.] 

The  plaintitr  complains,  and  alleges: 

I.   That   on   the    day   of    ,   18..,   at 

,  the  defendant,  by  force,  compelled  the  plaintiff 

to  go  with  him  to  the  police  office  [or  otherwise],  and  there 
imprisoned  him,  and  then  and  there  detained  him  restrained 

of  his  liberty  for  the  space  of days,  withont  probable 

cause  and  without  any  right  or  authority  so  to  do,  and  against 
the  will  of  the  plaintiff;  whereby  the  plaintiff  was  bruised  and 
wounded,  and  was  also  injured  in  his  credit,  and  wa.s  prevented 
from  attending  to  his  business  during  that  time,  and  was  com- 
pelled to  pay dollars  for  costs  and  counsel  fees  in 

obtaining  his  discharge,  to  his  damage dollars, 

[Demand  of  Judgment.] 

g  1664.  Special  damage.  Allegation  of  special  damage  by 
reason  of  the  imprisonment  may  be  inserted  in  the  complaint. ^'^ 
In  an  action  for  false  imprisonment  against  a  justice  of  the 
peace,  it  was  held  that  the  plaintiff  could  not  recover  in  dam- 
ages the  amount  of  costs  incurred  by  him  in  an  unsuccessful 
application  for  his  discharge  on  a  writ  of  habeas  corpus,  such 
costs  not  ha\dng  been  alleged  as  special  damages  in  the  com- 
plaint.2o 

§  1664a.  Change  of  venue.  In  an  action  for  false  imprison- 
ment the  defendant  has  a  right  to  have  the  case  transferred  to 
the  county  of  his  residence.^^ 

i«  Comfort  V.  Fnlton,  l.*^  Abb.  Vv.  21(\:  Tmosdell  v.  Combs.  ?,3 
Ohio  St.  1S6;  but  see,  for  qualification  of  this  statement,  Von 
Latham  v.  Libby,  38  Barb.  ,3.39;  McCall  v.  Cohen,  10  S.  C.  44.5;  42 
Am.  Rep.  041. 

iSMolony  r.  Dows,  !.">  TTow.  Pr.  200.  But  in  the  same  caso  alloca- 
tions of  asffravatinjr  ciroiim.stances  wero  struck  out. 

20  Spence  v.  Noynell,  2  Ne^'  Majr.  Cas.  19;  contra,  Williams  v. 
Garrett,  12  How.  Pr.  4.t0.  Punitive  damajres.  Seo  Hewlett  v.  Rags- 
dale,  08  Miss.  703;  Pearco  v.  Xeedham,  37  111.  App.  90. 

21  Ah  Feng  V.  Rtornes,  79  Cal.  30;  and  see  Yore  v.  Murphy,  10 
Mont,  304.  311;  Williams  v,  Keller,  6  Nev,  141. 


843  rOK    FALSE    IMPRISONMENT.  §    lt)64b 

§  1664b.  Sufficiency  of  complaint.  A  complaint  against  a  jus- 
tice of  the  peace  for  false  imprisonment  in  punishing  the  plaiutii! 
for  contempt  must  aver,  in  terms,  that  the  acts  constituting  the 
imprisonment  were  without  or  in  excess  of  his  jurisdiction,  or 
facts  from  which  a  want  of  jurisdiction  appears.^^  The  allega- 
tions that  the  acts  constituting  such  imprisonment  were  done 
"  wrongfully  "  or  '*  unlawfully  "'  are  of  mere  conclusions  of  law, 
and  tender  no  issue,  where  no  facts  are  averred  to  show  the  acts 
complained  of  to  be  wrongful  or  unlawful.^^  A  complaint  in 
an  action  against  a  justice  of  the  peace,  alleging  that  the  plain- 
tiff was  arrested  upon  a  warrant  issued  by  the  defendant  upon 
a  complaint  charging  the  plaintiff  ^Wth  refusing  to  return  a 
sum  of  money  claimed  to  have  been  overpaid  her,  and  further 
alleging  a  conviction  and  the  issue  of  a  committal  by  the  de- 
fendant, and  her  imprisonment  thereon,  shows  that  the  plaintiff 
was  charged  with  the  commission  of  an  act  which  did  not  con- 
stitute a  crime,  and  states  a  cause  of  action  against  the  defend- 
ant for  false  imprisonment.^^  Where  the  complaint  charges 
false  imprisonment  by  an  arrest  void  ab  initio,  it  is  a  material 
variance  to  admit  evidence  of  an  arrest  lawfully  made,  but  which 
afterwards  became  unlawful  imprisonment  by  reason  of  a  refusal 
to  recelA-e  bail.-'  To  admit  evidence  of  any  act  by  which  a 
lawful  imprisonment  becomes  unlawful,  the  facts  should  be 
alleged  in  the  complaint,  so  that  the  defendant  may  be  informed 
of  the  nature  of  the  charge  against  him  and  come  prepared  to 
meet  it  by  proof.'*' 

22r,oinp  V.  Dinwifldie,  SO  Cal.  C,?,?,. 

23  Tfl.  The  complaint  should  allofre  facts  showing  fliat  the  im- 
prisonment was  oxtra-Juflifial  or  without  lojral  process.  Gelzen- 
louchter  r.  Xienio.ver,  04  Wis.  821;  Kinjx  v.  .Tohustou,  81  id.  578;  and 
also  facts  showing  that  the  rriminal  action  had  terminated.  Id.; 
McDaniol  v.  Xelms.  nr,  Ca.  ?.Ca\:  West  v.  TTayes,  104  Ind.  2.".1 :  T.owe 
V.  Wartnian,  47  \.  .f.  L.  41.''>.  'I  he  ci)ini)laint  must  show  tliat  the 
arrest  was  unlawful,  and  an  allcirntion  llial  the  arrest  was  malici- 
ously procured  i.s  insufficient,  runninsjrhaiu  v.  Electric  Light  Co., 
17  N.  Y.  Supp.  372. 

24  De  Courcey  v.  fox,  (14  f'al.  or,.". 
2r.  Xciiiiitz  V.  Tonrad,  22  Orofr.  K'4. 

2«  Ocean  Steamship  Co.  v.  Williams,  GO  Ga.  251. 


CHAPTER  III. 

LIBEL   AND   SLANDER. 

§    1665.   For  libel  —  the  words  being  libelous  in  themselves. 
I'onn  No.  422. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That   on  the    day   of    ,   18..,   at 

,  the  defendant  published  a  newspaper  called  the 

[or  in  a  letter  addressed  to  C.  D.]    the  following 

words  of  and  concerning  the  plaintiff  [set  forth  the  words  usedj. 

II.  That  the  said  publication  was  false  and  defamatorj^ 

III.  That  by  means  of  said  false  and  defamatory  publication 
the  plaintiff  was  injured  in  his  reputation,  to  his  damage 
dollars. 

[Demand  of  Judgment.] 

§  1666.  Allegations  material.  The  material  allegations  in 
an  action  of  Hbel,  where  words  are  defamatory  on  their  face, 
and  in  the  English  language,  are:  (First)  That  the  defendant 
with  malice  or  wrongfully  (Second)  published,  (Third)  of  and 
concerning  plaintiff,  (Fourth)  these  false  words.  In  slander,  in- 
stead of  alleging,  (Second)  "  published,"  it  is  customary  to 
allege  "  that  he  spoke  in  the  presence  and  hearing  of  divers 
persons,"^  although  the  word  "  published  "  imports  ex  vi  termini, 
a  speaking  in  the  presence  and  hearing  of  somebody.^  From  a 
libel,  damage  is  always  implied  by  law;  whereas  some  kinds  of 
slander  only  are  actionable  without  proof  of  special  damage.^ 

§  1667.  The  same  —  concerning  the  plaintiff.  In  an  action 
for  lil^el  or  slander,  it  is  not  necessary  to  state  in  the  complaint 
any  extrinsic  facts  for  tho  purpose  of  showinsr  the  application 
to  the  plaintiff  of  the  defamatorv  matter  out  of  wbicb  the  cause 
of  action  arose;  but  it  is  sufficient  to  state  generally  that  the 

1  Wood  V.  Gilchrist,  1  Code  R.  117;  Anon..  ,3  How.  Pr.  406. 
2Dnpl  V.  Asran.  1  Code  R.  1,S4:  see.  also,  Lettman  v.  Ritz,  3  Sandf. 
1M\  and  Dob  nix  v.  Lehind,  1  Code  R.  (N.  S.)  235. 
3  Broom's  Com.  513. 


845  LIBEL  AND  SLANDEE.  §    1668 

same  was  published  or  spoken  concerning  the  plaintiff;  and  if 
such  allegation  be  controverted,  the  plaintiff  must  establish 
on  the  trial  that  it  was  so  published  or  spoken.'* 

§  1668.  The  same  —  intent  —  motive.  There  may  or  may 
not  be  any  intent,  good  or  bad;  but  intent  or  no  intent,  the 
liability  is  for  the  act  and  its  com^equences,  not  for  the  intent. 
The  usual  ground  upon  which  the  liability  is  placed  is  that  the 
law  presumes  every  one  to  intend  the  necessary  and  natural 
consequences  of  his  acts.^ 

The  intent  with  which  the  action  is  done  is  by  no  means  the 
test  of  liabiUty  of  a  party  to  an  action  of  trespass.*^  Bona  fides 
■will  not  protect  a  magistrate  who  does  an  illegal  act."  It  is 
immaterial  with  what  motive  a  man  does  an  unlawful  act.*  So 
an  assault  and  battery  committed  with  a  purpose  to  ridicule  the 
plaintiff  or  bring  him  into  contempt,  partakes  of  tlie  nature  of 
liHel;  and  in  order  to  recover  damages  for  the  injury  to  reputa- 
tion, as  well  as  for  that  to  the  person,  the  complaint  should  be 
for  assault  and  battery,  but  should  aver  intent  to  defame,  and 
injury  to  reputation,  in  addition  to  the  usual  averments  in 
actions  for  assault  and  battery.^  Thus,  averments  of  the  busi- 
ness of  the  parties,  that  the  assault  was  for  the  purpose  of 
compelling  the  plaintiff  to  give  up  his  business,  and  of  bringing 
him  into  disgrace  ancl  ridicule,  and  that  the  assault,  etc.,  caused 
him  to  be  ridiculed  by.  etc.,  though  not  essential  to  a  cause  of 
action,  are  not  immaterial.     The  motives  and  intent,  and  the 

4  Cal.  Ccwle  Civ.  Pro.,  §  4n0:  see.  also,  N.  Y.  Code  of  1877,  §  .5.35; 
Laws  of  Oreson.  §  88;  1  Wliitt  Pr.  (;r)7:  Van  Santv.  271:  Craicr  v. 
Pueblo  Press  Pub.  Co..  5  Col.  App.  208;  Fenstermakor  v.  Pnblish- 
Inp  Co.,  12  rtah,  489:  Petsch  v.  Dispatr-h  Co..  40  Minn.  201;  Harris 
r.  Znnono,  9.3  Cal.  .")9;  Wellman  v.  Sun  Printing,  etc-.,  Assoc,  fiG 
nun.  .3.31.  A  ^'oneral  averment  tliat  the  defamator.v  matter  was 
published  of  and  eonoerning  the  plaintiff  is  not  sufficient  if  other 
allefrations  settinpr  forth  the  cause  of  action  show  lliat  it  was  not 
of  and  roneeming  him.  Fleischmann  v.  Bennett,  23  Ilun.  200;  87 
X.  Y.  231. 

fi  Ilaire  v.  Wilson,  9  R.  &-  Cr.  043;  Vide  v.  Gray,  lo  Aitb.  Pr.  1; 
1  Esp.  X.  P.  Cas.  220:  Root  v.  Kinir,  7  Cow.  013. 

oCuille  r.  Swan.  19  .Tohns.  .381:  10  Am.  Dee.  231;  I'cn-ival  v. 
Illfke.v,  IS  .Tolins.  2.'7:  9  .\iu.  Dee.  210;  '{'remain  v.  Coliocs  Co.,  2 
X.  Y.  104:  S.ifford  v.  -W.veofr.  1  Hill,  11. 

TPi-ifkctt  V.  <;reatre.\,  1  Xew  Mag.  Cas.  ,^>43:  7  J.:}\v  Tiiiifs,  139. 

«.\mifk  V.  O'lTnni.  0  lilaekf.  (Ind.i  2~>H. 

0  Compare  Sheldon  v.  Carpenter,  4  X.  Y.  579;  n.l  Am.  r)ec.  301; 
Watson  V.  Hazzard,  3  Code  R.  218. 


§§  l(J(iO,  1670      FORMS  OF  COMPLAINTS.  846 

consetiueiioos  resulting,  are  material  on  the  question  of  daui- 
ages.^*^ 

§  1669.  The  same  —  language  set  out.  The  complaint 
should  set  out  the  very  words  published.'^  The  true  term  to 
be  used  to  indicate  that  the  very  words  are  set  forth  is  "  tenor. ''^^ 
It  is  not  enough  to  state  its  purport;^-^  and  when  the  words  were 
published  in  a  foreign  language,  the  foreign  wordjs  must  be  set 
forth  in  the  original,^"*  together  with  a  translation  into  English.*^ 
To  set  forth  the  foreign  words  alone,  or  their  translation  alone, 
is  not  sufliicient.^"  The  rule  that  the  exact  language  lused  should 
be  set  out  does  not  render  it  necessary  to  set  forth  the  whole 
of  the  matter  published,^'^  but  an  extract  of  the  particular  pas- 
sage complained  of  }^ 

§  1670.  Malice  is  presumed.  When  the  words  published  are 
unambiguous,  and  not  capable  of  being  understood  in  any  other 
sense  than  as  defamatory  to  an  extent  that  must  necessarily  ex- 
pose the  plaintiff  to  contempt  and  ridicule,  they  are  by  implica- 
tion of  law  malicious.  It  is  not  necessary  to  allege  in  the  com- 
plaint that  the  pid^lication  was  false  and  malicious.  Such  an 
allegation,  though  common  and  quite  proper,  is  a  mere  matter 
of  form,  the  lack  of  which  is  no  objection  to  a  pleading.^^    That 

10  Root  V.  Foster,  9  How.  Pr.  37. 

11  Wesley  v.  Bennett,  5  Abb.  Pr.  498;  Runilel  v.  Butler.  7  Barb. 
260;  Forsyth  v.  Edmiston,  2  Abb.  Pr.  430;  Finnerty  v.  Barker,  7 
N.  Y.  Leg.  Obs.  317;  Sullivan  v.  White,  6  Irish  Law  R.  40;  Whitaker 
V.  Freeman,  1  Dev.  271;  Lee  v.  Kane,  G  Gray  (Mass.),  49.5;  Taylor 
V.  Moran,  4  Met.  (Ky.)  127;  Commonwealth  v.  Wright.  1  Cush.  46; 
Brananian  y.  Hinkle,  137  Ind.  496;  Germ  Proof  Filter  Co.  v.  Paatenr- 
Chamberland  Filter  Co.,  81  Hun,  49;  Scluibert  v.  Richter,  92  Wis. 
199. 

12  Commonwealth  v.  Wright,  1  Cush.  46;  Wright  v.  Clements,  3 
B.  &  Aid.  .503. 

13  Wood  y.  Brown,  6  Taunt.  169;  S.  C,  1  Eng.  Com.  Law,  r>60. 

14  Zenobia  v.  Axtell,  6  T.  R.  162. 

i'>  Townshend  on  Sland.  and  Lib.  412;  see  Sehild  y.  Leglor.  82 
Wis.  7.3. 

i«Warmouth  y.  Ci-amer,  3  Wend.  .394;  Lottman  v.  Rltz,  3  Sandf. 
734;  Keenholts  v.  Becker,  3  Den.  346;  12  Ind.  4.">3;  ITickley  y.  Groa- 
Jean,  6  Rlac-kf.  3.51;  Rahauser  v.  Rr-hwerger  Barth,  3  Watts,  28. 

i7Deyo  V.  Bnindage,  13  How.  Pr.  221;  Cnlyer  y.  Van  Anden,  4 
Abb.  Pr.  37.5;  Rex  y.  Brereton,  8  Mod.  .329. 

i«  Cheethani  y.  Tillotson,  5  .Tohns.  430;  and  see  Unterberger  v. 
Seharff,  .51  :Mo.  App.  102. 

19  Hunt  y.  Bennett,  19  N.  Y.  173;  Root  y.  King,  7  Cow.  620. 


84?  LIBEL  AXD  SLANDER.  §    IGTl 

the  words  are  '^  libel"  is  a  sufficient  allegation  of  falsehood  and 
malice.^"  So  a  general  averment  of  malice  is  sufficient.^^  In 
an  action  for  libel,  it  is  not  indispensable  to  use  the  word 
"  maliciously  "  in  the  declaration.  It  is  sufficient  if  words  of 
equivalent  power  or  import,  are  used.-^ 

§  1671.  Malice,  how  averred.  Any  form  of  words  from  which 
malice  [absence  of  excuse]  can  be  inferred,  as  that  the  pubhca- 
tion  was  made^  falsely  or  wrongfully,  will  suffice.^  For  one 
meaning  of  malice  is  absence  of  legal  excuse.^  And  a  pleading 
may  be  sufficient  without  any  special  averment  of  malice.^  So 
a  declaration  which  charged  the  pubhcation  to  be  "  malicious, 
injurious,  and  unlawful "  was  held  sufficient.^^  The  averments 
usual  in  old  precedents,  that  the  defendant,  well  knowing  the 
premises,  etc.,  maliciously  intending  to  injure  the  plaintiff,  etc., 
and  to  bring  him  into  great  scandal  and  disgrace,  and  to  cause 
it  to  be  believed  that  the  plaintiff  had  been  guilty,  are  super- 
fluous.2^  So,  also,  that  the  defendant,  on,  etc.,  falsely  and 
maliciously  published,  etc.,  the  false,  malicious,  scandalous  and 
defamatory  matter  following,  is  unnecessary.  An  allegation 
that  the  publication  was  a  \\he\  has  been  held  equivalent 
to  an  allegation  that  it  was  false  and  malicious.^'*  In  all 
cases  where  the  facts  are  within  the  knowledge  of  the  de- 
fendant, or  the  statement  involved  is  in  itself  libelous,  a  general 
allegation  of  malice  will  be  sufficient  without  any  statement  of 
facts  and  circumstances.^^  So  express  malice,  or  want  of  prob- 
able cause  need  not  be  averred. ^° 

20  See  above  anthnrifies,  and  Fry  v.  Bennett,  o  Sandf.  54;  Viele 
V.  Gray,  18  How-.  Pi-.  r>.50. 

21  Purdy  V.  Can>enter,  0  How.  Pr.  ."iOl. 
22Wliite  V.  Xifhols.  ?,  How.  fU.  S.)  266. 
S"?  Townshend  on  Sland.  and  Lil).  410. 

24  Id.  85. 

2-''Opdyke  v.  Wood,  LS  Abb.  Pr.  TJP,.  note.s;  Harris  v.  Zanone,  93 
Cal.  59. 

2«  Rowo  V.  T^oaoh.   1    Man.   Ik   S.  .^04. 

27  Coleman  v.  Sonlhwiok,  0  .Tolins.  4.":  0  ,\ni.  Deo.  L*.'.?. 

2s  Hunt  V.  Bennett,  10  X.  Y.  17f>.  T><'L'nl  nialio(>  may  be  Inferred. 
I,iok  V.  Owen.  47  Tal.  2."2;  Bynm  v.  f'ollins,  111  N.  Y.  14.''.:  7  Am. 
St.  Bop.  726:  Lotliroj)  v.  Ad.-ims,  1."..'!  Mass.  471;  A?,  Am.  B.'i»- 
52«:   sfo   riiildors   v.    Publlsliinjr   To..    10."    Pal.   2.K4. 

2f' Viclo  V.  r;i;iy.  lo  Abb.  Pr.  1;  Howard  v.  Soxton.  4  X.  Y.  1.57; 
Buddhiirtrm   v.   Havi.s.  6  ITdw.   Vv.    101. 

S'' Pnrdy  v.  ran)fnter.  6  How.  I*r.  :iol;  I.lttbjolin  v.  (;rooloy.  13 
Abb.  Pr.  41. 


ij§  Hi72-1G74  roinis  of  coMrLAiNTS.  848 

§  1672.  Mftlice,  when  not  implied.  Under  the  statute  of 
New  York  and  otlier  states,  in  actions  against  reporters,  editors, 
and  proprietors  of  newspapers  I'or  an  alleged  libel  in  the  I'oport 
of  any  judicial,  legislative,  or  otlici-  public  ollicial  proceeding, 
or  of  any  statement,  speech,  argument,  or  debate  in  tlie  course  of 
the  same,  malice  in  publishing  the  rei)ort  is  not  implied  by  the 
publication.^^  An  accurate  report  in  a  newspaper  of  a  debate 
in  Parliament,  containing  matter  disparaging  an  individual,  i,s 
not  actionable.  The  publication  is  privileged ^on  the  ground 
that  the  advantage  of  publicity  to  tlie  community  outweighs 
any  private  injury;  and  connnents  in  the  newspaper  on  the 
debate  are  so  far  privileged  that  they  are  not  actionable  so  long 
as  they  are  honest,  fair,  and  justified  by  the  circumstances 
disclosed  in  the  debate.^^ 

§  1673.  Proprietor  and  publisher,  liability  of.  In  a  com- 
plaint for  libel  it  is  a  sutlicient  allegation  of  its  publication 
by  the  defendant  to  allege  that  he  was  the  proprietor  of  a  news- 
paper in  wliich  it  was  ]niblished,  without  otherwise  alleging  that 
he  published  it,  or  was  concerned  in  its  publication.^^  A  re- 
ceiver of  a  newspaper  concern,  pending  a  suit  to  settle  the 
partnership  accounts  of  its  proprietors,  will  be  personally  re- 
sponsible for  any  publication  therein  which  is  im]u-oper,  al- 
though the  order  of  his  appointment  directs  that  the  defendants 
may  continue  to  superintend  the  editorial  department.^^  But 
the  assignee  of  a  newspaper  establishment,  as  a  collateral  i^e- 
curity,  is  not  liable  for  a  libel  published  in  it.-'^''^ 

§  1674.  Publication,  averment  of.  Every  communication  of 
language  from  one  to  another  is  a  publication;  but  to  constitute 
an  actionable  publication  it  is  essential,  that  there  be  a  publica- 
tion to  a  third  person,  and  the  husband  or  wife  of  either  autlior 
or  publisher,  or  of  the  one  whom  or  whose  affairs  the  language 

31  See  Sandford  v.  Bennett,  24  N.  Y.  20. 

32Wason  V.  Walter,  Law  Rep.,  4  Q.  R.  7.^;  see,  also,  Ackerman 
V.  .Tones,  37  N.  Y.  Supr.  Ct.  (o  J.  &  Rp.)  42;  State  v.  Brady,  44  Kan. 
43.5:  21  Am.  St.  Rep.  296;  Moore  v.  Francis,  121  N.  Y.  199;  18  Am. 
St.  Rep.  SIO. 

33  Hunt  v.  Bennett,  19  N.  Y.  17?.:  atfirminp;  S.  C.  4  E.  D.  Smith, 
647;  and  see  Taylor  v.  Hearst.  107  Cal.  262. 

34  Marten  v.  Van  Sehaiok,  4  Paijre  Ch.  479. 

3R  As  to  the  jreneral  doctrine  respecting  the  liability  of  publishers 
and  propnetors  of  newspapers,  booksellers,  etc.,  see  2  Greenl.  Ev., 
§  416;  2  Stark,  on  Slander.  28-34;  1  Carter  find.),  344. 


849  LIBEL  AXD  SLANDER.  §    It) 7 5 

concerns,  is  regarded  as  a  third  person.^^  A  statement  that 
the  defendant  was  proprietor  of  a  newspaper,  and  that  the  words 
were  published  therein,  is  a  sufhcient  averment  of  pubhcation.^'^ 
The  pubKcation  mnst  be  alleged,  but  it  need  not  be  set  forth 
in  any  technical  form  of  words;^*  but  it  must  bo  alleged  posi- 
tively, and  not  by  way  of  recital. '^^  The  word  "  published  "  is 
the  proper  and  technical  term  by  which  to  allege  publication,'**' 
but  any  equivalent  allegation  will  suffice.*^  l>ut  to  allege  that 
defendant  composed,  wrote,  and  delivered  a  certain  libel  ad- 
dressed to  the  plaintiff,  was  held  insuthcient.'*^  That  defendant 
sent  a  letter  to  plaintiff,  which  was  received  and  read  by  him, 
does  not  show  a  sufficient  publication;'*^  it  is  necessary  to  allege 
that  it  was  in  fact  seen  or  read  (by  others).^*  So  where  the 
writer  reads  to  a  stranger  his  letter  to  the.  plaintiff,  before  dis- 
patching it,  it  is  a  publication.^^ 

§  1675.  Libel  and  slander — definition  of.  Slander  or  libel  is 
an  infringement  of  the  absolute  rights  of  persons.,  as  the  char- 
acter of  persons  is  undoubtedly  one  of  their  absolute  and  per- 
Bonal  rights. ^^  A  libel  is  a  written  or  printed  slander."*"  Libel 
is  a  false  and  unprivileged  publication  by  writing,  printing, 
picture,  effigy,  or  other  fixed  representation  to  the  eye,  which 
exposes  any  person  to  hatred,  contempt,  ridicule,  or  ol)loquy, 
or  which  causes  him  to  be  shunned  or  avoided,  or  wbich  lias  a 
tendency  to  injure  him  in  his  occupation.'*'''     T.ibel  is  both  a 

36  Townshend's  Sland.  and  Lil).  HO;  Wilcox  v.  Moon,  CA  Vt.  450;  33 
Am.  St.  Rep.  930;  Park  v.  Pres.s  Co.,  72  Mich.  500;  10  Am.  St.  Rep. 
544:  spo  Sesler  v.  Montffomeiy.  78  Cal.  480;  12  Am.  St.  Rep.  76. 

37  Hunt  V.  Bonnott,  4  E.  D.  Smith,  047;  aflirmed,  19  N.  Y.  173. 
88  Biildwin  V.  Elpliinsloii.  2  W.  B\.  1037. 

30  1)()iiaghe  V.  Rankin.  4   Munf.  201. 

40  Stark,  on  Slan.  8.ni>. 

41  'I'ownshcnd's  Sland.  and  Lib.  408;  Bnldwiii  v.  Kli)hinston.  2  W. 
Bl.  10.37;  WalstPd  v.  Holman,  2  Hall.  172:  Hunt  v.  Bonnott,  4 
E.  D.  Smith,  047. 

42Waist«"l  V.  Jlolm.'in.  2  Ilnll.  172:  and  soo  Spalts  v.  Ponndstone, 
87  Ind.  .-.22;  44  Am.   Rep.  .57.3. 

43  Lyle  V.  Clason.  1   Tai.  .581. 

44  Oilcs  V.  Tho  Staff.  0  Ha.  270. 

4n  Snyder  v.  Andrews,  0  Barb.  43;  MTondis  v.  Tnttjp,  5  Blnrkf. 
4.31;  Van  Cloef  v.  Lawrenfo.  2  f'lty  Hall  Rec-ordcr,  41. 

4flHolt  on  l.ibf'l.  1.5. 

47  1   Hllliard  on  Torts,  r.  7.  32. 

4Rral.  rivll  Codf,  8  45;  see.  also.  Pal.  Pon.  Code.  S  2-18;  Capo  t. 
RoT)lnson,  12  Ohio.  2.50:  Fisher  v.  Patterson.  14  id.  418;  Cole  v, 
Neustader.  22  Orofr.  191:  TayU.r  v.  Hearst.  107  Cal.  202, 

Vol.  T— 107 


§  1676  FORMS  or  compi.aixts.  850 

public  wrong  or  crime,  and  a  private  wrong  or  tort,  cognizalile 
by  the  common  law.  The  remedy  for  the  public  wrong  is  l)y 
indictment  or  criminal  information.  The  remedy  I'or  the  private 
wrong  is  a  civil  action  now  known  as  an  action  or  the  action  of 
or  for  libel."*-'  The  rule  is  generally  laid  down  that  a  publication 
is  hbelous  when  its  necessary  effect  is  to  diminish  the  plaintitf's 
reputation  for  respectability,  impair  his  condition,  and  abridge 
his  comforts,  by  exposing  him  to  disgrace  and  ridicule.*''"  in 
every  slander  there  are  two  acts,  composing  and  publishing. 
In  every  libel  there  are  three  acts,  composing,  writing  and  pub- 
lishing. So  every  publication  of  language  concerning  a  man  or 
his  aifairs,  which  as  a  necessary  or  natural  and  proximate  con- 
sequence occasion  pecuniary  loss  to  another,  is  prima  facie  a 
slander,  if  tlie  publication  be  oral;  and  a  libel  if  it  be  by 
writing.^^ 

§  1676.  Gist  of  action.  Pecuni^ary  loss  to  the  plaintiff  is  the 
gist  of  the  action  for  slander  or  libel.^-  If  the  language  pub- 
lished has  not  occasioned  the  plaintiff  pecuniary  loss,  actual  or 
implied,  no  action  can  be  maintained.  And  actual  loss  must 
be  shown  to  have  been  sustained.^^  Whether  or  not  matter  is 
libelous,  so  as  to  be  actionable,  depends  upon  the  style,  scope, 
spirit,  and  motive  of  the  publication,  taken  in  its  entirety,  and 
the  inquiry  is  into  the  natural  effect  of  it,  not  only  upon  the 
public  generally,  but  upon  the  neighbors  and  friends  of  the 
person  aimed  at.'* 

49  Townshend  on  Sland.  and.  Lib.  22. 

50  Hunt  V.  Bennett,  4  B.  D.  Smith,  647.  For  definition  of  libel, 
see  Towusliend  on  Sland.  and  liib.  31;  Burr.  Law  Diet.;  1  Hill,  on 
Torts,  c.  8,  313;  Holt  on  Libel,  213;  1  Mence  on  Libel,  125;  Steele 
r.  Southwick,  0  Johns.  214;  Cooper  \.  McElrath.  1  Den.  347;  3 
How.  (U.  S.)  200;  Arnienti-out  v.  Miranda,  S  Blackf.  42G;  4  Mass. 
115;  id.  103,  107;  3  Am.  Dec.  212;  McCord,  317;  Oarey  v.  Allen, 
39  Wis.  482;  Hand  v.  Winton,  38  N.  .T.  L.  122;  Byers  v.  Martin,  2 
Col.  T.  605;  Williams  v.  Godkin,  5  Daly.  490;  Williams  v.  Daven- 
port, 42  Minn.  393;  18  Am.  St.  Rep.  519;  Wincheil  v.  Argus  Co.,  69 
Hun,  354. 

51  Townshend's  Slander  and  Libel,  08. 
•'■•2  Id.  .57. 

53  Borthwric'h  on  Libels,  4.  Evidence  of  pecuniary  loss  is  un- 
necessary to  a  right  of  action  for  a  libelous  fharge  of  attempt  to 
commit  murder.    Kepnblican  Pub.  Co.  v.  Miner,  12  Col.  77. 

54  Moffat  V.  Cauldwell.  3  Hun.  20;  Sanderson  v.  Caldwell.  45  N. 
Y.  398;  0  Am.  Rep.  10.5.  A  complaint  whifh  alleges  in  substance 
that  the  defendant  intended  by  the  written  publication  complained 


851  LIBEL  AND  SLANDER.  §    1677 

§  1677.  Joinder  of  causes  of  action  and  parties.  It  would 
seem  that  plaiutitV  may  unite  in  one  complaint  a  cause  of  action. 
for  slander  with  a  cause  of  action  for  libel,  or  for  malicious 
prosecution.^*^  But  a  cause  of  action  in  a  plaintiff  singly  for 
slander  of  him  in  his  partnership  business  caai  not  be  joined  with 
a  cause  of  action  in  him  and  his  partners  jointly.^^  And  where 
a  complaint  contains  several  causes  of  action,  each  must  he  sepa- 
rately stated  and  numbered,^'"^  and  must  be  complete  in  itself.^^ 
Where  several  are  included  in  the  same  libel,  they  may  each 
maintain  a  separate  action  for  the  injury.^^  An  action  of  libel 
lies  against  two  or  more,  if  the  act  be  joint  and  done  by  all.*"*^ 
Where  a  publication  affects  a  class  o£  persons,  no  individual  of 
that  class  can  maintain  an  action.^^  In  libel,  all  who  can  concur 
in  the  publication  may  be  sued  together,  though  the  general  rule 
is  otherwise  as  to  slander,  as  words  uttered  by  one  are  not  the 
words  of  another.^^  But  if  one  repeats,  and  another  writes,  and 
a  third  approves  what  is  written,  all  are  liable.^^  Partners  may 
sue  for  libel  upon  them,  in  respect  to  their  business,  but  can 
recover  only  for  injury  to  their  firm.^  For  a  libel  on  partners, 
all  the  partners  may  sue  together.^^ 

of  thereby  to  charge  and  have  it  understood  and  believed  tliat  the 
plaintiff  wus  a  person  ciifrasod  in  niaJs:ing'  acconnts  which  he  never 
paid  or  intended  to  pay,  and  was  dishonest  and  wholly  unfit  and 
unworthy  of  credit,  that  s-.iid  pul)lication  was  understood  by  those 
to  whom  it  was  made  as  (•on\^e^'ing  such  meaning:  and  eharse  afjainat 
the  plaintiff,  and  that  sucli  puldieation  was  nuide  without  cause, 
and  out  of  pure  malice,  sufficiently  states  a  cause  of  action,  as 
apalnst  a  Kjen>ecral  demurrer.    Ingraham   v.   Lyon,   10.")  Cal.  254. 

55  Martin  v.  Mattison,  8  Abb.  Pr.  .3:  Hull  v.  Vreeland,  42  Barb. 
543;  3  Bing.  (N.  C.)  9.">0.  Or  for  slander  of  title.  Cousins  v.  Merrill, 
IG  TTp.  Can.  C.  P.  Rep.  114. 

5"  Kol>lnson   v.   Manliant,  7  Q.   B.  OlS. 

57  Pike  V.  Van  Wormer,  r>  How.   Pr.   171. 

58liolton  V.  Muzzy,  30  Vt  805;  Sinrlair  v.  VUch.  3  K.  I).  Smitli, 
080;  see  §  If  105.  ante. 

5»  Smart  V.  Blancliard,  42  N.  II.  i:'.7. 

«o  Thomas  v.  Kumsey.  0  Johns.  2(!;  Glass  v.  Stewart,  10  Serg.  & 
R.  222;  Bels  v.  Fuller.  84  Te.x.  450;  31  Am.  St  Rep.  7.^ 

«i  Wldte  v.  Delavaa,  17  Wend.  40;  but  see  Ryekinan  v.  Delavan, 
25  Id.  18r>;  Hardy  v.  William.son,  8<)  fla.  .^51;  22  .\in.  St.  Re]).  470. 
Any  one  of  tlie  class  may  maintain  an  action.  Fenstejuiaker  v. 
Publisliinu'  Co.,  12  T'tali,  4.".0. 

«2Forsyt]i  v.  Kdiidston,  2  .\lih.    Pr.  4:!(). 

"3  Tlif>ma8  V.  Ruinsey,  r,  .IoIuib.   2<'>. 

fi4Tnylor  v.  Clnircli,  1    F.   I  >.  Sndtli.  270. 

«5  Taylor  v.  riiunii.  K  .\.  V.  4.'.2;  see  S.  O.,  1   F.  D.  Shnith,  supra- 


§  1078  roKMs  OF  t'OMi'i-AiNTS.  853 

§  1678.  Privileged  communications.  As  examples  of  coniinu- 
nioations  whieli  have  been  held  to  he  i)rivilege(l  aiv  a  meiuorial  to 
tlie  postiiiaster-gi'iieral,  eliarging  Iraud  against  a  siieecssl'ul  can- 
clidato  for  a  contract.'"*  A  physician  granting  a  certiHcate  of 
lunacy,  pursuant  to  statute.*''  A  charge  preferred  hy  one  mem- 
ber of  a  loilge  against  another.*^**  Words  spoken  or  written  in  a 
legal  proceeding,  pertinent  and  material  to  the  subject  of  tlie 
controversy,  are  privilcged.^^  A  written  communication  from  a 
banker  in  the  country  to  a  mercantile  firm  in  the  city,  in  respect 
to  the  pecuniary  responsibility  of  a  party  whose  note  had  been 
forwarded  for  collection. '^^  The  withdrawal  by  an  employer  of  a 
former  recommendation  of  a  discharged  employee  is  privileged, 
unless  it  is  shown  to  be  malicious.'^^  The  publication  of  a  slan- 
der by  a  murderer  at  the  time  of  his  execution  is  not  privilegod.'^^ 
So  proceedings  before  a  grand  jury  are  not  privileged.''^  The 
comments  on  privileged  communications  are  not  protected,  if 
libelous  thempielves.''''*  The  defendant,  in  a  privileged  communi- 
cation described  the  plaintiff's  conduct  as  "  most  disgraceful  and 
dishonest."  The  conduct  so  defv^ribed  was  equivocal,  and  might 
honestly  have  been  supposed  hy  the  defendant  to  be  as  he  de- 
seril^ed  it;  it  was  held  tha.t  the  above  words  were  not  of  them- 
selves evidence  of  actual  malice.'^^ 

66  Cook  V.  Hill,  3  Sandf.  341;  Buddington  v.  Davis,  6  How.  Pr. 
401. 

67  Perkins  v.  Mitchell,  31  Barb.  461. 
68Streety   v.   Wood,   1.5  Barb.   105. 

69Garr  v.  Seldon,  4  N.  Y.  91;  Perkins  v.  Mitchell.  31  Barb.  461. 

70  Lewis  v.  Chapman,  16  N.  Y.  369;  reversing  S.  C.,  19  Barb.  252. 

71  Fowles  V.  Bowen.  30  X.  Y.  20. 
72Sanford  v.  Bennett,  24  N.  Y.  20. 

73  McCabe  v.  Cauldwell,  18  Abb.  Pi*.  377. 

74E<lsall  V.  Brooks,  26  How.   Pr.  426;  17  Abb.   Pr.   221. 

75  Spill  V.  Maulo,  L.  R.,  4  Exoh.  232.  For  additional  communica- 
tions which  are  deemed  privileged,  see  Ackerman  v.  .Tones,  37  N. 
Y.  Supr.  Ct.  (5  J.  &  Sp.)  42;  Rude  v.  Nass,  79  Wis.  321;  24  Am.  St 
Rep.  717;  Runge  v.  Franklin,  72  Tex.  585;  13  Am.  St.  Rep.  833; 
Byam  v.  Collins,  111  N.  Y.  143;  7  Am.  St.  Rep.  72(!.  As  to  liability 
of  proprietors  of  a  mercantile  agency  for  statements  respecting  the 
financial  standing  and  credit  of  a  merchant,  see  Sundoilin  v.  Brad- 
street,  46  N.  Y.  188;  7  Am.  Rep.  322,  where  it  is  lield  they  are  liable 
for  a  fal.se  report,  though  made  in  good  faith.  For  a  case  de- 
pending uix»n  special  facts,  see  Klinck  v.  Colby,  46  N.  Y.  427;  7 
Am.  Rep.  3W:  also.  Bradstroet  Co.  v.  Gill.  72  Tex.  115;  13  Am. 
St.  Rep.  768;  .Tohnson  v.  Bradstreot,  77  Ca.  172;  4  Am.  St.  Rep.  77. 
The  complaint  need  not  aver  that  the  alleged  libelous  publication 


853  LIBEL    AND   SLANDER.  §§    1679-1681 

§  1679.  Satire.  The  distinction  between  tlie  satirist  and  the 
libeler  is  that  one  speaks  of  the  species,  the  other  of  the  indi- 
vidual."^ So  an  action  for  libel  will  only  lie  upon  words  con- 
cerning distinguishable  ]3ei-sons,  and  can  not  be  brought  upon 
words  which  relate  to  a  class  or  order  of  men."^  But  it  must  be 
manifest  upon  the  face  of  the  publication  that  the  charges  made 
were  intended  against  a  cla^s,  profession,  or  order  of  men,  and 
can  not  by  possibility  impart  a  personal  application  tending  to 
private  injur}'."^ 

§  1680.  Special  damages.  Those  damages  which  are  not  the. 
necessary  consequence  of  the  language  complained  of  must  be 
specially  alleged  in  the  complaint.'^^  But  a  complaint  in  an 
action  for  words  in  writing  charging  insanity  need  not  allege 
special  damage.^*'  So  in  an  action  by  one  of  several  partners.^^ 
An  action  can  not  be  maintained  by  an  author  for  a  publication 
disparaging  his  copyright  work,  without  an  allegation  of  special 
damages.*^ 

§  1681.  Exemplary  damages.  If  the  injury  was  willful  or 
intentional,  if  the  express  malice  is  proved,  the  Jury  are  at 
liberty  to  award  damages,  not  only  to  compensate  the  actual 
and  pecuniary  loss  upon  the  ground  of  compensation  for  mental 
suffering,  public  disgrace,  etc.,  but  they  may  further  award 
exemplary  damages.®^ 

was  not  privileged.    Dixan  v.  Allen,  09  Oal.  527;  also,  Gudger  v. 
Penland.  108  X.  O.  .593;  23  Am.  St.  Rep.  73. 
^c>  .Tosoph  Andrews,  vol.  2.  p.  5. 

77  Sunnier  v.   Buell.  12  .Tohns.  47.5. 

78  Kycknian  v.  Dolavan.  2.5  Wend.  180;  reversing  White  v.  Dela- 
van.  17  id.  .50;  see  Slayton  v.  ITenil<en,  30  N.  Y.  Supi>.  249. 

7f»S(inicr  v.  Gould,  14  Wend.  159;  Kircli  v.  Ronton,  20  I^Io.  1.55; 
.Tolmson  v.  Rfdiertson.  8  Port.  48<;;  Barnes  v.  1'rundy.  31  Me.  .321; 
Bostwiclv  V.  Xiclielson,  Kirby.  05;  Bostwifk  v.  IIawU\v,  id.  290; 
Shipnian  v.  Burrows,  1  Hall,  .399;  Harconrt  v.  IlaiTison,  Id.  474; 
Wilson  v.  Rnnyon,  Wrigiit,  051;  and  soe  Stewart  v.  Tril)une  Co., 
40  Minn.  101;  12  Am.  St.  Bep.  090:  ^r(•I)un'  v.  .Tourii.-il  Co..  S4  Midi. 
1;  22  Am.  St.  Rep.  073. 

«o  Perliins  v.  Mitoludl.  31  Bnrb.  J01 :  Rci)ul)Ii(an  I'ul».  Co.  v.  Mos- 
man,  15  Col.  .399. 

«i  Robinson  v.   Maroliant,  7  Q.  B.  91  s. 

«2  Swan  v.  Tai)pan.  5  Cusli.  104. 

R3Fry  v.  Bennett,  1  A1>1».  Br.  2S9;  Hunt  v.  Bennett.  19  \.  Y.  17.S; 
but  spo  2  Gnvnl.  Ev.,  S  2.53;  !ind  Dain  v.  Wycoff,  7  X.  Y.  191: 
Marx  v.  Press  Pub.  Co.,  134  X.  Y.  ,50;  Montgomery  v.  Kiu>\-,  23  Fla. 
595. 


S$    U)8 v'-KiST)  FORMS   OF   COMrLAlNTS.  854 

o  o 

§  1682.  Names  of  customers  lost.  As  ii  general  rule,  the 
names  of  perst)ns  who  luive  rel'used  to  deal  with  the  plaiutiil 
must  be  stated.^'*  But  if, it  is  in  the  nature  of  things  imprac- 
ticable for  him  to  know  them,  he  may  prove  general  loss  of 
business.^  It  is  properly  a  question  of  evidence  which  can  not 
be  settled  before  the  trial. 

§  1683.  Corporations.  A  corporation  aggregate  has  the  ca- 
pacity to  compose  and  publish  a  libel,  and  by  reason  thereof, 
when  done,  becomes  liable  to  aai  action  for  damages,  by  the 
person  of  and  concerning  whom  the  words  are  composed  and 
published.^*^ 

§  1684.  For  libel  —  the  words  not  being  libelous  in  them- 
selves. 

Form  No.  423. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  plaintiff  is,  and  was,  on  and  before  the 

day  of ,  18.  .,  a  merchant,  doing  business  in  the 

city  of 

II.  That  on  the    day  of    ,   18 .  . ,   at 

,  the  defendant  published  a  newspaper  called  the 

[or  in  a  letter  addressed  to  E.  F.,  or  otherwise* 

show  how  published],  the  following  words  concerning  the  plain- 
tiff: ["A.  B.,  of  this  city,  has  modestly  retired  to  foreign  lands. 

It  is  said  that  creditors  to  the  amount  of dollars 

are  anxiously  seeking  his  address."] 

III.  That  the  defendant  meant  thereby  that  [the  plaintiff  liad 
absconded  to  avoid  his  creditors,  and  A\ith  intent  to  defraud 
them]. 

TV.  That  the  publication  was  false. 

[Demand  of  Judgment.] ^'^ 

§  1685.  Ambiguous  article.  It  may  be  averred  of  an  ambig- 
iious  article  that  it  was  published  with  a  particular  intent,  and 

?4  Linden  v.  Graham,  1  Duer,  070;  .Tacobs  v.  Water  Co..  2T>  N.  Y. 
Supp.  .340;  Taylor  v.  Hearst,  107  Cal.  202. 

f^^  Evans  v.   Harries,   1    Hnrlst.   &  N.  2.51. 

^  Maynard  v.  Fireman's  Fund  Ins.  Co.,  34  Cal.  4S:  ni  .\m.  Dec. 
072;  Mo.  Pac.  R.  R.  Co.  v.  Rirlimond.  73  Te.-?.  .508;  15  Am.  St.  Rep. 
794;  .Tohnson   v.   Dispatch   Co.,   05  INTo.  ,5.39;   27   Am.   Rop:   29.3. 

S7  This  form  is  from  New  York  Code  Commissioners'  Book  of 
Forms. 


855  LIBEL   AND    SLANDER.  §§    1686-1688 

was  so  understood  by  its  readers,  and  this  avennent  may  be 
proved  on  the  trial.^^  This  is  more  strictly  correct  than  to  em- 
ploy an  innuendo  for  the  same  purpose.^^ 

§  1686.  Capacity  must  be  averred.  When  the  words  charged 
bear  relation  to  the  plaintitt'  in  his  business  or  othcial  capacity, 
such  capacity  should  be  averred  in  a  traver^sible  form  in  the 
complaint;^"  and  the  fact  of  his  being  engaged  in  such  business 
or  profession  at  the  time  the  words  were  spoken  should  be 
alleged.^^  In  such  an  action  special  damages  need  not  be 
alleged.^^ 

§  1687.  Construction.  Where  the  words  alleged  in  a  com- 
plaint for  libel  are  fairly  susceptible  of  a  construction  which 
would  render  them  Hbelous,  the  complaint  \y\\\  be  sustained 
upon  demurrer,  although  the  words  may  also  be  interpreted  so 
as  to  be  innocent .^^  Where,  in  an  action  for  libel,  the  words 
complained  of  are  not  per  sc  libelous,  what  the  defendant  in- 
tended and  understood  them  to  mean,  by  those  to  whom  they 
were  published,  constitutes  a  proper  subject  of  averment  in 
pleading  and  proof  on  the  trial,  and  if  what  was  so  intended 
and  understood  by  the  defendant,  and  understood  by  those  to 
whom  the  words  were  published,  was  libelous,  the  wi)rds  are 
actionable.^* 

§  1688.  Extrinsic  facts.  Where  the  actionable  quality  of 
language  depends  upon  the  capacity  of  the  plaintiff,  and  the 
language  itself  does  not  disclose  that  he  is  in  such  capacity  or 
occupation,  an  averment  that  plaintiff  is  of  such  a  trade  or  pro- 
fession will  be  sufficient.  But  where  the  language  is  actionable 
of  the  plaintiff  as  an  individual  also,  it  is  not  necessary  to  allege 

88  Gibson  v.  Williams.  4  Wond.  .'^520. 

ssBlaisdell  v.  Kayniond,  4  Abb.  Pr.  440. 

e«2  rireenl.  Kv.,  §  412;  Carroll  v.  AVliite,  ?,:\  Rarb.  Gl.''). 

01  Canoll  v.  Wliitp,  ?^P,  Barl).  r.ir,. 

»2  Butler  V.  riowe.s,  7  Cal.  ST;  MrKenzio  v.  Oenvor  Tiinos,  8  Col. 
App.  r>~^4;  fonipare  "Woodi-ufT  v.  Bradstropt.  llfi  X.  V.  217.  As  to 
tho  resi)onsiliility  of  an  editor  in  rcsix-ct  to  foninients  upon  the 
nianatrcr  of  a  llieafor.  see  Fry  v.  r.i'iinclt.  .'',  Bosw.  200;  S.  C.  5 
Sandf.  r,4;  S.  C.  4  iMicr.  217 

03  Wesley  v.   Bennett,  .".  Abb.   I'r.    U»S. 

04  Maynard  v.  Fireman's  I'luid  Ins.  dt.,  .?4  Cal.  48;  01  Am.  Dec. 
672. 


§    U)89  i'-Ol{.MS    Ul'    COMI'LAIMS.  856 

an  iiuliK'oment.''"'  W'lu'u  the  words  used  by  the  defendant  do 
not  of  ihenisc'lves  convoy  tlio  meaning  which  the  plaintill'  would 
attribute  to  them,  and  such  meaning  results  oidy  from  some 
extrinsic  matter  or  fact,  such  extrinsic  uiatter  or  fact  must  bo 
alleged  in  the  complaint,  and  proved  on  the  trial,  it  is,  there- 
fore, necessiu'y  for  the  plaint  ill  in  such  a  case  distinctly  to  aver 
the  extrinsic  fact  upon  which  he  relies  to  make  the  publication 
libelous.'"'''  Where  the  publication  is  not  defamatory  on  its  face, 
the  existence  of  extrinsic  facts  rendering  it  defamatory  must  be 
alleged. ^^  But  where  it  is  not  essential,  such  statement  would 
be  mere  surplusage.'"'**  By  the  statute  it  is  no  longer  necessary 
to  state  an  inducement.  So  in  New  York,  and  in  Missouri.'-'^ 
So  also  in  Massachusetts,  where  "  a  distinct  averment  in  regard 
to  the  person  spoken  of,  and  a  clear  reference  of  the  calumnious 
words  to  that  person,  is  all  that  is  required."^^ 

§  1689.  Innuendo.  The  office  of  an  innuendo  is  to  explain, 
not  10  extend,  what  has  gone  before,  and  it  can  not  enlarge  the 
meaning  of  words  unless  it  be  connected  with  some  matter  of 
fact  expressly  aveiTed.^*^^  Nor  can  it  change  the  ordinary  mean- 
ing of  language. ^"^     Nor  introduce  new  matter. ^^^     It  is  only 

95  Townshend  on  Slander  and  Libel,  400:  Gage  v.  Robinson,  12 
Ohio,  250. 

96  Caldwell  v.  Raymond,  2  Abb.  Pr.  193;  see,  also,  Cass  v.  Ander- 
son. 33  Vt.  182;  Cartee  v.  Andrews,  16  Pielc.  1. 

97  Pike  V.  Van  Wormer.  5  How.  Pr.  171;  S.  C,  6  id.  99;  Fry  v. 
Bennett.  5  Sandf.  54;  Dias  v.  Short,  Ifi  How.  Pr.  322;  Blaisdell  v. 
Raymond,  4  Abb.  Pr.  440;  CaiToll  v.  White.  33  Barb.  615;  Culver 
r.  Van  Anden.  4  Abb.  Pr.  375. 

9S  Townshend  on  Slander  and  Libel,  .".97. 

99  Srieber  v.  Wensel,  19  Mo.  513;  and  Wisconsin.  A'an  Slyke  v. 
Carpenter,  7  Wis.  173. 

100  Miller  v.  Parish,  8  Pielv.  383;  Stark,  on  Slan.  .390.  So  in 
Utah.  It  is  snflicient  to  state  penorally,  that  the  defamatory  mat- 
ter was  published  oonoerninff  tlie  plaintiff,  and  if  sncli  allegation  be 
controverted,  the  plaintiff  must  estal)lish  on  the  trial  that  it  was 
so  i)ublish(>d.    Fenstermaker  v.  Publishing  Cr>..  12  TTtah,  4.39. 

101  Patterson  v.  Edwards,  2  Cilm.  720;  Van  Vechten  v.  Hopkins, 
5  .Tohns.  211;  4  Am.  Dec.  3.39;  Brown  v.  Moore,  .35  N.  Y.  Sn]))).  730; 
90  Hun,  109.  An  innuendo  serves  to  explain  precedent  matter,  but 
never  to  establish  a  new  charge  or  change  the  sense  of  previous 
words.  Cole  v.  Neustadter,  22  Oreg.  191;  Bell  v.  Publishing  Co., 
3  Abb.  X.  C.  157. 

102  Mays  v.  Mitchell,  7  Blackf.  117. 

103  Nichols  V.  Packard,  10  Vt.  83;  Weir  v.  Hoss,  0  Ala.  881. 


857  LIBEL   AND    SLANDER.  §    1690 

a  link  to  attach  together  facts  already  kno^\^l  to  the  court.^"'*  It 
can  not  attribute  to  words  a  meaning  which  renders  them 
actionable/^^  without  a  prefatory  averment  of  extrinsic  facts 
which  makes  them  slanderous.^°^  The  use  of  innuendoes  is  in 
part  retained  and  in  part  dispensed  with  under  our  system  of 
pleading.  If  the  words  used  are  not  libelous  per  sc,  but  are 
made  so  by  some  extrinsic  matter  alleged  by  way  of  inducement, 
innuendoes  are  necessary  to  show  the  connection  of  such  words 
with  the  intrinsic  facts.  So,  also,  where  the  publication  is 
made  libelous  by  reference  to  extrinsic  matter  not  necessary  to 
be  alleged.  In  such  case  the  extrinsic  fact  should  be  suggested 
by  an  innuendo.  AVhere  words  are  not  libelous  per  sc,  tiie  ex- 
traneous facts  must  be  stated  in  the  introduction  or  induce- 
ment; as  an  innuendo  can  not  extend,  but  only  apply  the 
words. ^'^''^  The  employment  of  the  innuendo  will  be  indulged 
where  the  convenience  of  pleading  demands,  it,  though  in  some 
cases  it  may  not  be  strictly  proper.^*^^ 

§  1690.  Innuendoes,  when  not  essential.  When  tlie  language 
is  not  in  itself  applical)le  to  the  plaintili',  no  innuendo  can  make 
it  so.^**^  But  if  the  plaintiff  is  designated  by  another  name  in 
the  libel,  his  real  name  may  be  designated  by  an  innuendo."*' 
Where  it  is  desired  to  connect  tlie  words  charged  with  the  col- 
loquium, or  to  show  the  meaning  imputed  to  words  libelous  per 
se,  we  consider  that  innuendoes  may  be  dispensed  with;  and  it 
will  always  be  unsafe  to  rely  on  an  innuendo,  unsupported  by  a 
distinct  prefatorv'  averment,  to  show  a  libelous  meaning  not 
evident   from  the  words  used."^ 

104  Cooko  on  Defamation.  94. 

los  riolton  T.  Muzzy,  30  Vt.  365. 

5M  Watts  v.  Oreenlpp,  2  Dov.  n.^>:  Brown  v.  Brown,  14  Mo.  317; 
Beswifk  v.  riiapiiel,  S  B.  Mon.  480;  Dottarer  v.  Bushy.  10  reitn. 
St.  207;  2  Bibb,  .-{in. 

if»7  Nifhols  v.  Packard.  10  Vt.  RT;  Brown  v.  Brown.  14  Mo.  317; 
narris  v.  Bniiey,  S  \.  II.  2."n:  Linvillp  v.  Earlywine.  4  Blai'kf. 
400:  Tapi)an  v.  Wilson.  7  Oliio.  100,  part  1. 

los  Seo  Blaisdell  v.  Bayinond.  4  Abl).  Vv.  410;  ral.lw.41  v.  Bay- 
mond.  2  Id.  103;  Dp  Witt  v.  Wright.  r»7  Pjil.  .'>70:  Rtowart  v.  Wilson, 
23  Minn.  440;  Wallaro  v.  Bennott.  1   Abb.  X.  O.  47R. 

lofl  TownPhond's  Rlnnd.  and  Lib.    114,  420. 

110  Hays  V.   Bn'erly.  4  Watts,  ."^02. 

111  .\s  to  proof  of  libelous  nioaninir  by  pxlranoous  pvid.'ur.^.  and 
as  to  sufflflonry  of  Inniu-ndn  drawn,  seo  Warliter  v.  Quenzor,  29 
N.  Y.  547;  Butler  v.  Wood.  10  How.  Pr.  222. 

108 


§§    1691-1G94  FORMS   OF   COMPLAINTS.  858 

§  1691.  Letter.  A  complaint  which  alk^ges  that  defendant 
sent  a  Ictlcr  to  plaintill',  and  that  the  same  was,  by  means  ol' 
snch  sending  tliereoi',  received  and  read  by  plaintill",  and  thereby 
published  by  the  plaintiff,  is  not  good;  lor  the  letter  ia  pre- 
sumed to  be  sealed,  and  sending  a  letter  is  not  publication.*^^ 
But  reading  aloud  a  letter  containing  libelous  matter  amounts 
to  publicatiou.^^^ 

§  1692.  Libelous  imputations.  Among  imputations  which  are 
libelous  are  an  imputation  ol  the  receipt  ol  money  lor  procuring 
a  public  appointment;  an  imputation  ol  insanity;**^  corruption 
against  a  member  of  the  legislature;**^  a  statement  of  the  keeper 
of  an  intelligence  office  reflecting  on  the  business  capacity  of 
the  partners  ol  a  mercantile  firm.***' 

§  1693.  Libelous  intent  and  meaning.  Where  a  complaint 
only  averred  a  libelous  intent  and  meaning  on  the  part  ol  the 
defendant  in  the  composing  and  publishing  of  the  words,  with- 
out averring  that  they  were  so  understood  by  these  to  whom  they 
were  published,  a  demuiTcr  to  the  complaint  on  the  ground  that 
the  written  and  published  words  set  forth  do  not  constitute  a 
libel,  should  be  sustained.^*'^ 

§  1694.  Special  damage.  When  the  words  are  in  their 
natural  and  obvious  construction  injurious,  some  damage  is  to 
be  presumed,  and  it  is  not  essential  to  allege  special  damage '.^^^ 
but  when  the  court  can  discern  no  injurious  meaning  in  the 
plain  and  natural  purport  of  the  publication  itself,  the  plain- 
tiff must  aver  and  prove  special  damage. ^*^ 

112  Lyle  V.  Olason,  1  Cai.  .581. 

113  Snyder  v.  Andrews,  G  Barb.  4,3;  Moore  v.  Francis,  121  N.  Y. 
199;  18  Am.  St.  Rep.  810. 

114  Perkins  v.  Mitchell,  .31  Barb.  4(>1. 

115  Littlejohn  v.  Greeley,  13  Abb.  Pr.  41. 

116  Taylor  v.  Church,  8  N.  Y.  451;  see,  further,  Townshend  on 
Sland.  and  Lib. 

UTMaynard  v.  F.  F.  Ins.  Co.,  34  Cal.  48;  91  Am.  Doc.  C,72. 

118  Perkins  v.  Mitchell,  31  Barb.  4r,l;  Hicks  v.  Walker,  2  G.  Greene 
(Iowa),  440;  Fitzporald  v.  Giles,  84  Hun,  295;  Pokrok,  etc.,  Pub. 
Co.  V.  Ziskovsky,  42  Neb.  04;  Barr  v.  Birkner,  44  id.  192;  Kenkle 
T.  Schaub,  94  Mich.  .542;  Republiean  Pub.  Co.  v.  Mosman,  15  Col. 
399. 

119  Caldwell  v.  Raymond,  2  Abb.  Pr.  193;  Stone  v.  Cooper,  2  Dec. 
299;  Bennett  v.  Williamson,  4  Sandf.  60. 


859  LIBEL    AND    SLANDER.  §§    1695-1G97 

§  1695.  Of  and  concerning  plaintiff.  Although  inducement 
may  be  necessary  to  explain  the  matter  alleged  to  be  libelouri, 
it  is  enough  to  state  in  the  declaration  that  the  publication  was 
"  of  and  concerning "'  the  plaintift'.^-^  The  court  assumes  the 
words  complained  of  do  in  fact  refer  to  the  plaintiff,^-^  By 
section  460,  California  Code  of  Civil  Procedure,  the  averment 
that  the  same  was  published  concerning  the  plaintitf  supplies 
the  place  of  all  averments  of  extrinsic  facts  which  might  other- 
wise be  necessary  to  show  the  application  of  the  words  charged 
to  the  plaintiff.  This  averment  is  essential,  and  can  not  be 
supplied  by  an  innuendo. 

§  1696.  Reputation  —  character.  Reputation  is  the  estimate 
in  which  an  individual  is  held  by  public  fame  in  the  place  where 
he  is  known ;^22  qj^^  j^  jg  ^^^  necessary  to  prefix  the  word  "  gen- 
eral."^23  rpj^^  ^^,^^^  "character"  and  "reputation,"  though 
often  used  synonymously,  are  in  fact  not  synonymous.^^ 
"  Character "  is  a  terra  convertible  with  common  report.^^ 
"  General  character  "  is  the  estimation  in  which  a  person  is  held 
in  the  community  where  he  resides.^-^  It  is  the  result  of  gen- 
eral conduct. ^2'''  "  Chaste  character  "  means  actual  personal 
virtue,  not  actual  reputation.^^ 

§  1697.  Words  with  a  covert  meaning.  AVords  which  on  their 
face  appear  to  be  enlirely  liarmless  may  under  certain  circum- 
stances convey  a  covert,  meaning  wholly  different  from  the  or- 
dinary and  natural  interpretation  usually  put  upon  them.  To' 
render  such  words  actionable,  it  is  necessary  for  the  pleader  to 
aver  that  the  author  of  the  lil^el  intended  them  to  be  under- 
stood, and  that  they  were  in  fact  understood  by  tliow^  who  read 
them  in  their  covert  sense.^^o     i^^^  ^^.j^^j^  ^  hidrlcn  defamatory 

120  TownslH'iid  nil  Slaiul.  and  JAh.  4(i(;;  Harris  v.  Zanono.  it:?  CaJ.  59. 

121  Wesley  v.  Bennett,  r>  Abb.   Pr.  49S. 

122  Cooper  v.  rireeh-y.  1   Den.  .'?47. 
12.T  Freneh  v.  Millard.  2  Olilo  St.  ."►0. 

124  Biieklin  v.  The  Stat(>.  20  Ohio.  IS;  Fren<-li  v.  Millard.  2  Ohio 
St.  r/).  That  they  ai-e  tlie  same,  see  Kiniinel  v.  Kiininel.  .'?  Sprjr. 
&  R.  337. 

125  Id. 

I2fl  See  Donplass  v.  Tousey,  2  Weiid.  ."!.>1:  20  Ain.   Dee.  CAr>. 

127  Sharp  V.  Seojrin,  Holfs  N.  ]'.  ('.  r,U:  ."!  Am.  I..i\\  .1.  (\.  S.)  14.'). 

I2sran»f'nfer  v.  Peoide.  H  I'.nrb.  C/C;  Cyiy/.wr  v.  Pcoitle,  1  Park. 
Tr.   4.'.'',:   Safford    v.    Pee)de.   id.   474. 

i20^faynard  v.  I'iremaii's  l-'iuid  Iiis.  fci..  .^4  Pal.  4.S:  01  Am.  Dec. 
072:  F.f(^.  also.  Ttiindell  v.  P.ntler.  7  P.arb.  200;  Wesley  v.  Bennett, 
r>  Abb.  Pr.  49S;  and  Carroll  v.  White.  ?.?,  Rarb.  HIS. 


v,^^>    lui/o.  xui/c;  FORMS    01'    COMrLAINTS.  860 

meaning  is  sought  to  bo  atlributccl  to  words  in  themselves  in- 
nocent, and  on  their  face  containing  no  such  sense,  by  extrinsic 
facts  outside  and  independent  of  tlie  publication  itself,  the 
knowledge  of  such  facts  must  be  shown  by  averment  to  have 
existed  in  the  breast  of  the  defendant  at  the  time  of  tho  publi- 
catiou.^^^ 

§   1698.   The  same  —  by  an  attorney  at  law. 

For)ti  No.   424. 

[TiTLE.J 

The  plaintiir  complains,  and  alleges: 

I.  That  the  plaintiff  was,  on  and  before  the day  of 

....    ,  18. .,  an  attorney  at  law  of  the  several  courts  of 

record  of  the  state  of ,  duly  admitted  as  such  to 

practice  therein,  as  such  attorney,  and  had  practiced,  and  still 
continued  to  practice  as  such  attorney  at  law,  in  the  several 

courts  of  record  in  said  state  of ,  and  had  always, 

as  such  attorney  at  law,  conducted  and  demeaned  himself  with 
honesty  and  fidelity,  and  had  never  been  guilty,  or  suspected  to 
liave  been  guilty,  of  any  misconduct  or  malpractice,  in  liis  said 
capacity  and  profession  of  an  attorney  at  law. 

II.  That  on  the   day  of    ,  18..,  at 

,  the  defendant  published  in  a  newspaper  called 

the    the  following  words   concerning  the  said 

plaintiff,  and  of  and  concerning  him  in  his  said  capacity  and 
profession  of  an  attorney  at  law  [set  forth  the  words  used] 

III.  That  defendant  meant  thereby  that  [state  innuendo  |. 

IV.  That  said  publication  was  false  and  defamatory  and  by 
means  thereof  the  plaintiff'  had  been  and  is  greatly  injured  and 
prejudiced  in  his  reputation  aforesaid,  and  has  also  lost  and 
been  deprived  of  great  gains  and  profits,  which  would  otherwise 
have  arisen  and  accrued  to  him  in  his  said  profession  and  busi- 
ness, to  his  damage dollars. 

[DE:\rAXD  OF  Jtjdgment.] 

§    1699.   The  same  —  by  a  physician. 

Form   No.   425. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

T.  That  at  the  time  hereinafter  mentioned  the  plaintiff  was  a 
physiei.'in.  practicing  as  such  at 

i''.'>  Rmith  r.  .'\shlpr.  11  >ref.  ?,c~:  A~  Am.  Deo.  216;  Dexter  v.  Spear, 
4  Mason.  ll.">;  Ilairis  v.  Zanone,  9.3  Gal.  59. 


861  LIBEL   AND   SLANDER.  §§    1700,1';  Ui 

II.  That  on  the day  of  ,  18. .,  the 

defendant  published  in  a  newspaper  called  the   , 

the  following  words  concerning  tlie  plaintiff  [set  forth  the  words 
usedj . 

III.  That  said  publication  was  false  and  defamatory,  and  by 
means  thereof  tlie  plaintiff  was  injured  in  his  reputation,  and 
in  his  said  good  name  and  crcTilit  as  a  physician,  and  in  his 
practice  as  such,  to  his  damage dollars. 

[Demand  of  JuDuiiENT.] 

§   1700.   For  libel  —  charge  of  dishonesty,  etc.,  in  business. 

For)n  Xo.  426. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  times  hereinaft-er  mentioned,  the  plaintiff  was 
a  corporation  existing  by  or  under  tlie  laws  of  this  state,  was 

engaged  in  business  in  the  city  of ,  as  a  banker 

and  stock  broker. 

II.  That  the  business  of  this  plaintiff  as  a has 

always  depended  largely  on  the  good  reputation  and  credit  of 
this  plaintiff,  and  on  tlie  trust  reposed  in  it,  and  by  their  share- 
holders and  the  public,  in  consequence  thereof. 

III.  That  the  defendant  was,  at  the  times  hereinafter  men- 
tioned, the  publisher  and  proprietor  of  tiiB    ,  a 

ncAvspaper  published  in  the  city  of 

TY.  That  the  defendant,  well  knowing  the  premises,  did,  on 

the day  of 18.  .,  compose  and  publish 

in  said  newspaper,  concerning  the  plaintiff,  and  concerning  the 
premises,  the  false  and  defamatory  matter  followiTig,  to-wii 
[here  insert  the  words  of  libel,  innuendoes,  etc.] 

V.  That  by  reason   of  the  promises,  the  plaintiff  has  been 

injured  in  its  reputation  and  credit,  to  its  damage 

dollars 

[Demand  of  Judgment.] 

8  1701.  Corporations  —  special  damage.  Incorporated  com- 
panies establislicd  for  the  purpose  of  transa^'ting  business,  e.  ,^., 
ba.nks,  may  maintain  actions  for  libel,  the  same  as  individuals, 
for  words  nfffr-fin;!  their  business  or  property,  and  without  al- 
leging sper-inl  dnmnges.'^* 

131  Shoe  and  TyO.nflior  Rank  v.  Tlionipson,  2.T  TTrnv.  Pr.  2;'").'?;  see 
Southern  Chemiral  etc.,  Co.  v.  Wolf.  48  La.  Ann.  631. 


§^    1702,1703  FORMS    OF    COMPLAINTS.  862 

§  1702.  For  charge  of  crime  —  words  not  libelous  on  their 
face. 

form  No.  427. 

[Title.] 

The  plaintiir  complains,  and  alleges: 

I.  That  at  the  time  hereinafter  mentioned,  the  [dwelling- 
hoiisej  of  the  defendaait  had  been  burned  down,  and  it  was 
suspected  that  it  had  been  feloniously  set  on  fire. 

II.  That  on  the    day  of   ,   18..,  at 

,  the  defendant  published  in  a  newspaper  called 

,   the  following  words  concerning   the  plaintiff: 

"  One  A.  B.  kindled  the  lire,  and  I  can  prove  it." 

III.  That  the  defendant  meant  thereby  that  the  plaintiff  had 
feloniously  set  fire  to  said  house. 

IV.  That  the  said  publication  was  false  and  defamatory. 

V.  That  plaintiff  hath  sustained  damage  by  reason  of  said 

false  and  defamatory  publication  in  the  sum  of  

dollars. 

[Demand  of  Judgment.] 

§  1703.  For  accusing  plaintiff  of  perjury  in  Ms  answer  to 
a  complaint. 

Form  No.  428. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  before  the  committing  of  the  grievances  hereinafter 
mentioned,  the  plaintiff'  had  filed  his  answer  in  a  certain  action 
then  pending  against  him  in  the  Superior  Court  of  the  county 

of ,  state  of ,  wherein  the  defendant 

herein  was  plaintiff;  and  which  said  answer  was  verified  by  this 
plaintiff. 

II.  That  on  the    day  of    ,  18.  .,  at 

,  the  defendant,  well  knowing  the  premises,  pub- 
lished and  caused  and  procured  to  be  published,  in  a  newspaper 

called  the ,  concerning  the  plaintiff  and  his  said 

answer,  the  following  words  [here  state  the  libelous  matter] ; 
and  in  a  certain  other  part  of  the  said  libel,  the  following  words 
[here  state  libelous  matter]. 

TIT.  That  paid  publication  was  and  is  false  and  defamatory, 
and  by  rea.'son  thereof  the  plaintiff  hath  sustained  dam.age  in 

the  sum  of dollars. 

[Demand  of  Judgment.] 


863  LIBEL   AND    SLANDER.  §§    1704,  1705 

§   1704.   For  composing  a  libel  not  directly  accusing  the  plain- 
tifE  of  perjury. 

For)n  No.   429. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  before  the  committing  of  the  grievances  by  the  de- 
fendant hereinafter  mentioned,  a  certain  action  had  been  pend- 
ing in  the  Superior  Court  of  the  county  of ,  state 

of ,  wherein  one  A.  B.  was  plaintiff  and  one  C. 

D.  was  defendant,  and  which  action  had  been  then  lately  tried  in 
said  court,  and  on  such  trial  the  plaintiff  herein  was  examined 
on  oath,  and  had  given  his  evidence  as  a  witness  in  behalf  of  the 
said  A.  B. 

II.  That  on  the    day  of    ,  18.  .,  at 

,  the  defendant  published  in  a  newspaper  called 

the ,  the  following  words  concerning  the  plaintiff 

and  the  said  action,  and  concerning  the  evidence  given  by  the 
said  plaintiff  upon  the  said  trial  as  such  witness,  that  is  to  say: 
"  He  "  (meaning  the  plaintiff)  "  was  forsworn  on  the  trial " 
(meaning  the  said  trial),  and  that  he,  the  said  plaintiff',  in  giv- 
ing his  evidence  as  such  wdtness  on  said  trial,  had  committed 
willful  and  corrupt  perjury. 

III.  That  said  publication  was  and  is  false  and  defamatory. 

IV.  That  by  reason  of  said  false  and  defamatory  pul)lication 

the  plaintiff  hath  been  damaged  in  the  sum  of   

dollars. 

[Demand  of  Judgment.] 

§  1705.  For  a  libel  not  directly  accusing  the  plaintiff  of  lar- 
ceny. 

Form  No.   430. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

T.  That  l)efore  the  committing  of  tbe  grievances  hereinafter 
mentioned,  a  certain  horse  of  the  defendant  ha.fl  been  f(>loiiiously 
stolen  by  some  person  or  persons  [or  stnto  tliat  \\\o  (IcfiMulniit 
"was  possessed  of  a  horse,  and  had  as.<f'i-1cd  jlmi  liis  borsc  hnd 
been  feloniously  stolen."  or  "it  had  been  asserted  tliat  his  said 
horse  had  been  feloniously  stolen  "]. 

IT.  That  on  the    ....    day  of    IS...   at 

,  tbe  defendant,  well  knowing  tbe  premises,  puli- 

lisbed  in  a  newspaper,  fallod  the   tbe  following 

■wordB  concerning  the  plaintiff:  "  Tie  is  tbe  person  who  took 
Thy  horse  from  the  field." 


^$    170r)-1708  FORMS    OF    COMl'LAliNTS.  8G-i 

111.   That  the  dolViulant  iiK'ant  tlu'ivby  llial  the  plainlilV  had 
felonioutily  stolon  liis  saitl  liurse. 

1\'.  That  the  said  publicatiou  was  false  and  defamatory,  and 
by  reason  of  said  falsu  and  defamatory  publication  the  plaiutilf 

hath  sustained  damage  in  the  sum  ol dollars. 

[Demand  of  Judgment.] 

§    1706.   For  libel  by  signs. la- 

J-onn  No.   431. 

[Title.] 

The  plaint  ill'  complains,  and  alleges: 

I.  That  on  the    day   of    ,   18 .  . ,   at 

,  the  defendant,  contriving  to  injure  the  plaintiff 

in  his  reputation,  and  to  bring  him  into  public  contempt,  dis- 
grace and  ridicule,  did,  in  the  public  street  of  said , 

wrongfully  and  maliciously  malce,  and  cause  to  be  made,  an 
effigy  or  figure  intended  to  represent  the  person  of  the  plaintiff, 
and  hung  up  and  caused  to  be  hung  up  the  said  effigy,  in  the 
view  of  the  neighbors  of  the  plaintiff  and  of  the  public  then  and 
there  assembled,  l)y  means  of  which  the  plaintiff  has  been  greatly 

injured  in  his  reputation,  to  his  damage dollars. 

[Demaxd  of  Judgmext.] 

§    1707.   For  slander  —  the  words  being  actionable   in   them- 
selves. 

Form  No.   432. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18 .  . ,   at 

,  the  defendant  spoke,  in  the  hearing  of  A.  B.  [or 

sundry  persons],  of  and  concerning  the  plaintiff,  the  false  and 
scandalous  words  follo^ving  [he  is  a  thief],  to  the  damage  of 

the  plaintiff   dollars. 

[Demand  of  Judgment.] 

§  1708.  Abatement  of  action.  By  the  common  law,  actions  of 
tort  die  with  the  person,  a.nd  this  rule  applies  to  actions  for 
slander  and  libel,  except  in  those  states  where  a  different  rule 
is  prescribed  by  the  statute. ^^^ 

132  A  caricature  may  be  libelons.  See  Yiele  v.  Gray,  10  How.  Pr. 
.5.n0:  10  Abb.  Pr.  1. 

is.'i  Townshpnd  on  Slander  and  Libol.  389:  see  1  W.  Sannd.  316; 
Nettleton  v.  Dinehart.  .5  Oush.  .543,  .544;  Walford  on  Parties,  1392, 
1449. 


865  LIBEL   AND    SLAXDEK.  §§    1709-1713, 

§  1709.  Ambiguous  words.  Where  words  are  ambiguous  and 
uncertain  in  their  meaning,  the  complaint  must  allege  such  cir- 
cumstances as  will  show  that  they  were  uttered  with  a  slanderous 
meaning.^^'* 

§  1710.  Averments  in  complaint.  The  Xew  York  Code  has 
changed  the  common-law  rule  of  pleading  in  actions  of  slander 
in  one  particular:  that  is,  although  it  may  be  uncertain  to  whom 
the  words  were  intended  to  apply,  it  is  no  longer  necessary  to 
insert  in  the  complaint  any  averment  showing  they  were  in- 
tended to  apply  to  the  plaintiff.^^^  A  complaint  which  avers 
that  defendant  spoke  certain  words  of  and  concerning  the  plain- 
tiff, and  setting  forth  the  words  which  appear  actio-nable  per  se, 
sufficiently  states  a  cause  of  action.^^'^ 

§  1711.  Chastity.  Ordinarily,  and  in  the  absence  of  any 
statutory  provision,  words  published  orally  charging  a  woman 
with  want  of  chastity  are  not  actionable  per  se.'^'-^'^  Want  of 
chastity,  special  damage  being  averred,  as  to  unmarried  female, 
is  actionable;^^'^  also  as  against  a  man,^^''  or  a  married  woman.^^*^ 
In  California  tlie  common-law  rule  tliat  charging  a  want  of 
chastity  is  not  actionable  per  se,  has  been  changed  by  the  Code, 
whether  the  words  are  spoken  of  a  man  or  woman.^'*^ 

§  1712.  Construction.  In  a  declaration  in  slander,  tlie  words 
laid  as  the  slanderous  charge  will  bo  understood  by  the  court 
in  tlieir  natnral  and  popular  sense. ^^^ 

§  1713.  Continuando.  In  complaint  for  slander  the  words 
spoken  shoukl  not  be  alleged  witli  a  continnando.     Slanderous 

134  Pike  V.  Van  Wormer,  .•>  How.  Pr.  171;  S.  C.  0  id.  on. 

13.';  Pike  V.  Van  Wornier,  C.  How.  Pr.  90.  So  in  California.  But 
the  averments  necessary  in  common-law  plcadinp  to  show  the 
meaning  of  the  words  must  still  be  made.  Ilan-is  v.  Zanone.  93 
Cal.  r>i). 

l.3«Malone  v.  Stilwcll.   1.'  Abb.  Pr.  -121. 

1.^7  Town.sliend  on   Slnndcr  and   Libel.  IT.^    cf  scq. 

I3f<  Fuller  V.   Fenncr.  IC  Barb.  V,?,:',. 

i.iOTprwilllt'er  v.  Wands,  17  N.  Y.  r^\  72  Am.  Dor.  420. 

140  Wilson  V.  Ooit.  17  N.  Y.  442;  Olmste.nd  v.  Brown,  12  Barb. 
057:  Klein  v.  Ilentz.  2  Ducr,  r,?,?,. 

141  Tal.  Civil  Code.  §  40:  Hitchf()<-k  v.  Canitbers.  S2  Cal.  .''•2.'?; 
and  see  Barnctt  v.  Ward,  P,r,  Ohio  St.  107;  38  Am.  Rep.  501;  Kelley 
V.  Fl.'iliorty.  10  B.  T.  2.^4:  27  Am.  St.  Bop.  739. 

l42Tuttle  V.  Bishop,  30  Conn.  89. 

YoL.  1—109 


^^    K  11-1717  I'OUMS    OF    COMPLAINTS.  8GG 

words  spoken  at  one  time  constitute  one  cause  of  action.  The 
same  or  other  slanderous  words  spoken  at  other  times  constitute 
other  causes  of  action,  but  if  relied  on  they  should  be  separately 
pleaded,  in  separate  paragraphs.^'*^ 

i  1714.  Counts  in  complaint.  Jt  is  allowable  to  include  in 
the  same  declaration  divers  distinct  words  of  slander  of  dilVer- 
ent  import.^'*'*  -But  a  new  count  for  another  slander  can  not  be 
added  after  the  right  of  action  has  been  liarred  by  the  Statute  of 
Limitations.^'*'*  Under  the  old  rule  the  plaintiif  was  held  to 
strict  proof  of  the  words  as  charged  in  the  declaration;  and  to 
meet  this  rule  it  was  necessary  to  state  the  words  in  a  variety  of 
counts  adapted  to  the  evidence  rolled  on.^'**"' 

S  1715.  Damages.  In  an  action  for  slander,  where  words 
are  charged  to  have  been  spoken  of  and  concerning  a  plaintiff 
as  a  clerk  or  tradesman,  which  it  is  alleged  was  his  profession,  it 
is  unnecessary  to  allege  special  damages. ^'*'^ 

§  1716.  Disease.  With  respect  to  the  charge  of  having  a 
disease,  it  is  actionable  to  charge  having  certain  diseases,  but 
it  has  been  held  not  actionable  to  charge  one  with-  having  had 
such  diseases.^^^  Thiis,  that  a  married  woman  has  (in  the  pres- 
ent tense)  a  venereal  disease;^'*^  that  a  man  has  a  venereal 
disease.^^® 

§  1717.  Entire  conversation.  A  count  of  a  petition,  in  an 
action  for  slander,  which  sets  out  the  entire  conversation  in 
which  the  slander  was  spoken,  contains  only  one  cause  of  ac- 
tion, although  the  conversation  consists  of  several  parts,  each  of 
which  is  actionable.^^^     A  complaint  in  an  action  for  slander 

143  Rwinney  v.  Nave.  22  Ind.  178. 

144  Hall  V.  Nees.  27  111.  411.  Whore  distinct  causes  of  action. 
upon  a  charge  of  slander,  are  not  separately  stated,  or  not  stated 
with  sufficient  certainty,  these  defects  are  waived  by  a  general 
demurrer.    Clugston  v.  Gan'etson,   103  Cal.  441. 

145  Smith  V.  Smith,  4.5  Penn.  St.  403. 

140  See  Olmstoad  v.  Miller,  1  Wend.  .WO:  .\ldrich  v.  Brown,  11 
id.  1^)00:  Keenholtz  v.  Becker.  3  Den.  34^1:  Fox  v.  Vanderbock.  .5  Cow. 
513;  Howard  v.  Sexton,  4  X.  Y.  1.57:  Rnndell  v.  Butler,  7  Barb.  2(50. 

147  Butler  v.  Howes,  7  Cal.  87:  Frolich  v.  McKieman,  84  id.  177, 

14S  ToAvnsliend  on  Slnndor  and  T.ibel.  1.S4. 

149  Williams  v.    Tloldredge.   22  Barb.   396. 

ir-.n  Hewitt  v.  Ma.son,  24  How.   Pr. .  300. 

151  Cracraft  v.  Cochran.  IG  Iowa,  301. 


86?  LIBEL   AND    SLANDER.  §§    1718,  1719 

which  states  that  the  words  contained  therein  are  those  which 
the  defendant  spoke  eouceniing  the  plaintiff  is  good,  althougli 
the  style  of  such  words  is  unusual  for  a  conversation.^^- 

§  1718.  Essential  averments.  In  an  action  for  slander  it 
should  be  alleged  that  the  defendant  spoke  the  words  in  the 
presence  and  hearing  of  divers  persons.  To  allege  a  speaking 
merely  is  not  sufficient. ^^^  But  in  Indiana,  by  statute,  it  is  suffi- 
cient merely  to  allege  the  speaking.^^^  Or  it  is  sufficient  to  al- 
lege, "  in  the  hearing  of  certain  persons,"  naming  them;^^^  or 
of  certain  persons  named,  and  divers  others,  not  naming  the 
others.  ^^*^ 

§  1719.  Husband  and  wife.  By  the  statute  of  New  York 
of  1860  and  1862,  a  married  woman  may  sue  alone  and  without 
her  husband  for  slander  or  libel;  and  so  in  Pennsylvania. ^^^ 
But  a  wife  can  not  sue  her  husband  for  slander;^^^  but  if  there 
be  no  statutory  provision  to  govern  such  actions,  the  action 
should  be  brought  in  the  name  of  botli  husband  and  wife.^^^ 
And  if  the  husband  dies,  the  action  survives  to  the  wife;  but  if 
the  wife  dies  before  verdict,  the  action  abates.^^  If  the  words 
concerning  a  married  woman  are  actionable  because  of  special 
damage  to  the  husband,  tlie  hus1)a.nd  must  sue  alone,^^^  even  if 
the  husband  and  wiio  live  apart  under  a  deed  of  separation. 1*^2 
So  for  a  charge  of  joint  larceny,  the  husband  should  sue  alone.^^^ 

152  Hull  v.  Vreeland,  42  Barb.  .543. 

153  Style,   70:   Stark.   Slan.  300. 

154  Guard  v.  Risk,  11    Ind.   !'>('>. 
i55Burbank  v.  Horn.  .'«)  Mo.  2.33. 

156  BradshaAv  v.  Perdue  12  Oa.  .')10;  Ware  v.  Cartledjre.  24  Ala. 
C22;  no  Am.  Dec.  481);  see  Harris  v.  Zanono,  93  Cal.  .">0. 

iSTItanKler  v.  Iluiinncll.  37  Peun.  St.  l.W;  see.  also,  N.  Y.  Code, 
§  4r/K 

iBSFreethy  v.  Froothy,  42  Barb.  041;  'J'il.bs  v.  Brown.  2  Grant's 
Gas.    fPonn.)   .39. 

15»  Stark,  on  Sland.  .349;  Newton  v.  Bowo.  8  Sc.  L.  R.  2(;:  Dengate 
T.  Gardiner,  4  Moe.  &  W.  5;  Sayre,  .33;  Baldwin  v.  Flower,  3  Mod. 
120;  Lonfr  v.  Lon^,  4  Ponn.  St.  29. 

wt  stroop  v.  Swjirts.  12  Seir.  i^'  K.  70;  soo  Stylo.  1.38. 

161  Savillo  V.  Swooney.  4  P.arn.  ^-  Adol.  .514;  l.ons  v.  Long.  4 
Ponn.  St..  29;  St.-irk.  on  Sl.iiid.  ::.".l;  Fort.  :'.77;  1  Lev.  140;  Klein  v. 
Ilentz,  2  T»ner.  0.33. 

162  Bonoii  V.  Biiiuioy.  2  Ilili,  309;  soo  Townsliond  on  Slnnd.  and  Lib. 
390. 

103  Basil   V.  Soninior,  20  Penn.  St.  l.'")9. 


^§    17v'0-17v*'3  FOKMS    OF    COMPLAINTS.  8G8 

Whcro  tho  lani^iiage  published  conecnis  hoth  hushaiul  and  wife, 
the  husband  may  sue  ak)ue  ior  the  injury  to  him,  and  the  hus- 
band and  wilV  may  sue  jointly  I'or  the  injury  to  the  wii'e.^'"''*  i^'or 
a  publication  by  a  married  woman,  tlie  action  must  be  against 
her  and  her  Inisband.^^^ 

§  1720.  Joinder  of  actions.  A  cause  of  action  against  the 
husband  for  the  wrongful  act  of  his  wife  can  not  be  joined  with 
a  cause  of  action  against  him  for  his  own  wrongful  act.  Thus, 
where  the  complaint  in  an  action  against  husband  and  wife 
stated  a  cause  of  action  for  slanderous  words  of  the  wife,  and  a 
further  cause  of  action  for  slanderous  words  of  the  husband, 
it  was  held  that  the  two  causes  of  action  were  improperly 
joined.  ^'''^ 

§  1721.  Jurisdiction.  The  court  has  jurisdiction  in  an  action 
of  slander,  although  the  slanderous  words  were  spoken  in 
another  state. ^*''''' 

§  1722.  Language  in  part  slanderous.  Where  the  complaint 
sets  out  language  used  on  a  single  occasion,  a  part  of  which  is 
slanderous  and  the  rest  is  not,  the  latter  portion  will  not  be 
stricken  out  as  irrelevant.  Though  it  may  not  be  necessary  to 
allege  in  the  complaint  all  that  was  said  at  the  time,  it  is  proper 
to  do  so.^^^  Plaintiff  was  not  bound,  however,  to  prove  all  the 
words  charged.  If  he  proved  some  of  them,  and  those  proA^ed 
were  actionable,  it  was  enough. ^^^  And  different  sets  of  words 
importing  the  same  charge,  and  laid  as  spoken  at  the  same  time, 
might  under  the  former  practice  be  included  in  the  same 
count.^''^^  If  any  of  the  words  are  actionable  judgment  must  be 
for  the  plaintiff .^'^^ 

164  Bash  v.  Sommer.  20  Penn.  St.  159. 

KW  5  Car.  &  P.  4M;  2  Wils.  227;  Style,  349;  2  W.  Saund.  117. 

ic-*"-  Malone  v.  Stilwell,  1.5  Abb.  Pr.  421. 

iC'T  Hull  V.  Vreeland.  42  Barb.  .543. 

lesDeyo  v.  Brunda^o.  18  How.  Pr.  221;  Root  v.  Lowndes,  6  Hill, 
518;  41  Am.  Dec.  7r,2. 

169  Loomis  V.  Swick,  3  Wend.  205;  Purple  v.  Horton,  13  id.  9; 
27  Am.  Dec.  1G7;  compare,  also,  Dioyt  v.  Tanner,  20  Wend.  190; 
Genet  v.  Mitchell,  7  Johns.  120. 

iTORathbun  v.  Eraigh,  0  Wond.  407;  Milligan  v.  Thorn,   id.  412. 

171  Edds  V.  Waters,  4  Cranch  C.  C,  170. 


869  LIBEL   AND    SLANDER.  §§    1723-1726 

§  1723.  Of  or  concerning  plaintifE.  It  is  sufficient  to  aver 
substantially  that  the  words  were  spoken  of  plaintitt'.  An  ex- 
press averment  of  the  fact  is  not  necessary.^"- 

§  1724.  Place  and  time.  The  place^'^  or  time  of  speaking 
the  words^''*  are  not  material;  but  it  must  be  prior  to  the  com- 
mencement of  the  action.^^^ 

§  1725.  Presence  and  hearing,  allegation  of.  The  words  used 
must  be  alleged  as  having  been  spoken  of  and  concerning  the 
plaintilf,  in  the  presence  and  hearing  of  some  person  or  per- 
sons.^'"^  But  the  plaintiff  may  amend  on  the  trial,  if  defendant 
is  not  misled.^"  It  is  a  sufficient  allegation  in  a  complaint  in 
an  action  for  slander,  to  show  that  the  words  were  spoken  in  the 
presence  and  hearing  of  some  person  or  persons;  to  state  that  in 
certain  conversations  or  discussions  defendant  did  publish,  de- 
clare, etc.,  is  sufficient,  as  these  words  sufficiently  imply  the  pres- 
ence of  hearers,  and  indicate  that  the  declarations  were  public 
and  notorious."^ 

§  1726.  Presumption  of  malice.  Where  the  occasion  upon 
whicb  the  words  for  which  an  action  of  slander  is  brought  were 
spoken  repels  any  presumption  of  malice,  and  proof  of  it  is 
necessar\'  to  maintain  the  action,  it  is  sufficient  to  aver  that  they 
were  spoken  maliciously,  without  setting  forth  in  the  complaint 
the  facts  and  circumstances  wliicli  show  the  existence  of 
malice  ''^ 

172  Brown  v.  Lamberton,  2  Binn.  .''.4;  Brashen  v.  Shepherd.  Ky. 
Dec.  249;  Nestle  v.  Van  Rlyok.  2  Hill.  2S;2:  l>ut  see  Titus  v.  Follet. 
Id.  .31.S;  Tyler  v.  Tillotson.  id.  508;  Cave  v.  Shelor.  2  Mnnf.  10.3; 
Harper  v.  Delp,  3  Ind.  22.">;  Bex  v.  Marsden,  4  Mau.  &  Sel.  104; 
Baldwin   v.   Ilildreth,   14  Gray   (Mass.K   221. 

17.3  Jeff  eri OS  v.  Dunconil)e,  11  Ea.st,  220. 

174  22  Barb.  87. 

175  Taylor  v.   SnrRinffjror,  2  Bep.   Con.   Ct.   307. 

i7fl  Anonymous,  3  How.  Br.  400;  Wood  v.  Cilchrlst,  1  Code  B.  117. 

177  Id. 

i7snnrd  v.  Moore.  2  Oiepr.  8.";  see  Tlariis  v.  Zanono.  03  Cal.  .'0. 
An  alletration  on  inf'ornuition  and  belief  tliat  im  a  eertain  day  the 
defendant  sr)oke  in  the  presenee  f)f  eertiiin  named  piM-sons  tlie 
Blanrlerons  words  eomplained  of.  lielil  sndicjciil.  McKitmoy  v. 
Roberts.  0.S  Cal.  102. 

179  Viele  V.  Clray.  1o  .\bb.  T'r.  1.  An  nlleirntinn  tlmt  lln«  defama- 
tory words  spoken  nf  Ihi-  iiJiiintifT  "  wei-e  false"  iniiilies  nialiee  on 
the  part  of  the  defendant,  ami   it   is  not  necessary  to  allege  and 


5j5$    Kv'7-K30  FORMS    OF    COMTLAIXTS.  870 

§  1727.  Published.  "  ruhlislu'd '"  c.r  z'i  termini,  imports  a 
speaking  in  the  presence  of  a  third  party.^**"  And  this  aver- 
ment is  sutiieient,  without  averring  specially  in  the  presence  of 
others.^**^  That  the  words  were  spoken  would  be  sufficient,  if 
accompanied  by  an  averment  implying  publication  to  a  third 
person.^**- 

§  1728.  Several  liability.  As  a  general  rule,  an  action  of 
slander  will  not  lie  against  two  i)ersons,  as  every  speaker  must 
be  sued  separately, ^^^  although  it  seems  that  where  the  words 
are  alleged  to  have  been  uttered  in  pursuance  of  a  conspiracy  be- 
tween two  or  more  defendants,  the  action  may  be  maintained.^®* 

§  1729.  Slander  defined.  Slander  is  the  imputation:  1.  Of 
some  temporal  offense,  for  which  the  party  may  be  indicted 
and  punished  in  the  temporal  courts;  2.  Of  an  existing  con- 
tagious disorder,  tending  to  exclude  the  party  from  society; 
3.  Of  an  unfitness  to  perform  an  office  or  employment  of  profit, 
or  want  of  integrity  in  an  office  of  honor;  4.  Words  prejudicing 
a  person  in  his  lucrative  profession  or  trade;  5.  Any  untrue 
w^ords  occasioning  actual  damage  ;^^^  slander  being  an  unwritten 
or  unprinted  libel. i*^*^  It  is  also  defined  to  be  "  tlie  publishing 
of  w^ords  in  writing  or  by  speaking,  by  reason  of  which  the 
person  to  whom  they  relate  becomes  liable  to  sufi'er  some  cor- 
poral punishment  or  to  sustain  some  damage."^^"^  Slander  is 
a  private  Avrong  or  tort,  cognizable  by  the  common  law,  the 
remedy  for  which  is  a  civil  action,  formerly  known  as  an  "  action 
on  the  case  for  words,"  and  now  as  "  an  action,  or  the  action 
of  or  for  slander."^^® 

§  1730.  Special  damages.  The  loss  wiiich  ensues  as  a  nejces- 
sary  consequence  is  termed  damage:  the  loss  which  ensues  as  a 
natural  and  proximate  consequence  is  termed  special  damages. ^^® 

prove    in    tlio    first,    instance,    that    the    words    were    spolien    with 
malice.    Harris  v.  Zanone,  9,3  Cal.  .59. 

iWDnel  V.  Apan.  1  Codp  R.  1.34. 

isi  Burton  v.  Burton.  3  Iowa.  SIR. 

182  Taylor  v.  How,  Cro.   Eliz.  861. 

i83Malone  v.  Stilwoll.  1.5  Abb.  Pr.  421. 

184  1  Chit.  n.  74;  Bull.  N.  P.  .5;  Forsyth  v.  Edmiston,  2  Abb.  Pr.  430. 

i«5  1  Hilliard  on  Torts,  c.  7,  p.  3.3. 

186  Id.    32. 

187  Bar.  Abr. 

iss  Townphend  on  Sland.  and  Lib.  22. 
189  Id.  148. 


871  LIBEL    AND    SLANDER.  §§    1T31,  ViS'i 

Special  damages  consist  iu  tlie  loss  of  marriage,  loss  of  consort- 
ium of  husband  and  wife,  loss  of  emoluments,  profits,  customers, 
employment  or  gratuitous  hospitality,  or  by  being  subjected 
to  any  other  inconvenience  or  annoyance  occasioning  or  in- 
volving a  pecuniary  loss.^'-"^  Mere  apprehension  of  loss  is  not 
such  special  damage  as  will  maintain  an  action.^^^  ]\Iental  dis- 
tress, physical  illness,  and  inability  to  labor,  occasioned  by  the 
aspersion  of  words  not  in  themselves  actionable,  are  not  grounds 
for  special  damages.  ^^^ 

§  1731.  Special  damages  must  be  alleged.  Special  damages,  or 
those  damages  which  are  not  the  necessar}-  consequence  of  the 
language  complained  of,  must  be  specially  alleged  in  the  com- 
plaint.^'*^ A  pecuniary  loss  must  be  shown  to  entitle  the  plain- 
tiff to  a  remedy.i^^  The  objections  that  allegations  of  special 
damage  —  e.  g.,  in  an  action  for  slander  —  are  not  sufficiently 
specific,  can'  not  be  raised  by  demurrer,  but  only  by  motion 
to  make  more  specific. ^^^ 

§  1732.  Subsequent  usage.  In  slander,  allegations  of  a  sub- 
sequent usage  of  the  words  complained  of  are  inadmissible. 
A  repetition  may  be  proved  without  such  allegation. ^'^•'^  If 
after  a  recovery  has  been  had  in  an  action  for  slander  or  libel, 
special  damage  occurs,  no  action  can  be  maintained  therefor. 

if»o  Townsbeud  on  Sland.  and  Lili.  227. 

i»ild.  230:  Terwlllifrer  v.  Wands.  IT  N.  Y.  .^;  72  Am.  Dec.  420; 
Wilson  V.  Goit.  17  N.  Y.  442. 

102  The  case  of  Rradt  v.  Towsley.  13  Wend.  2r)3;  and  Fuller  v. 
Fenner,  16  Barb.  3;]3;  overruled.  Terwillijier  v.  Wauds,  17  N.  Y. 
54:  72  Am.  Dee.  420:  Wilson  v.  Coil.  17  N.  Y.  442.  Mental 
Bufferinjr  entitles  the  iilaintiff  to  eoni])ensation  in  an  netion  for 
Blunder,  and  the  damages  may  be  enli;inced  liy  tlie  fact  tliat  the 
mendter's  of  the  plaintiff's  family  wonld  snffer  by  ri>ason  of  the 
disgraee  Imposed  upon  the  i)l:iintiff  by  the  slanderous  eharfie. 
Caliill  V.  Murphy.  JM-  Cal.  20:  2«  Am.  St.  Rep.  88:  (Mulders  v. 
Publisliinjr  Co..  10.".  (^al.  284;  45  Am.  St.  Rep.  40. 

IM  Townshend  on  Shmd.  iV  r.il).  ■»2S:  citini;  v:iri(>us  :niniori1ies. 
See  Frolieli  v.  McKicrn;m,  SI  (';il.  177. 

in4  Bo'ifii  V.  Raniiey.  '_'  Hill,  :{0n:  ITerrick  v.  r,ai>ti;im.  10  .lohns. 
281:  Ilalloek  v.  Miller,  2  H:nl».  0.30:  Ili-rsh  v.  KiIl^'\Villt,  :?  Y(>ates, 
508;  2  Am.   Dee,  302;  eoni]»nre  §   17.''.0,  uiilc. 

lO.";  Hewitt  v.   Mason,  24  How.    Vr.  300. 

lOflfJray  v.  Nellis,  0  ITow.  ^'1•.  200.  Aefion  for  rf<i)elilion  of  slander. 
See  Ilalnes  v.  Campbell.  74   Md.  ir,8:  28  Am.   St.  Rep.  240. 


^^  Ko3-lT35  rouMS  oi'  coMrLAiXTS.  87.^ 

Tho  tirsl  rooovery  is  a  bar  to  any  subsoquent  action. ^"'^  Ordi- 
narily, ilio  repetition  of  language  by  another  than  the  tirst 
publii^lier  is  not  a  natural  consequence  oi'  tlie  first  publication, 
and,  therefore,  except  in  certain  cases,  the  loss  resulting  from 
such  repetition  docs  not  constitute  special  damage.^'-"* 

§  1733.  Specific  words.  Tho  specific  words  in  which  slander 
is  conveyed  must  be  set  forth  in  the  petition  in.  an  action  of 
slander;  and  it  is  not  sufficient  to  state  the  eft'cx;t  of  the  words 
merely,  or  to  allege  that  the  defendant  charged  the  plaintiff 
Avith  a  particular  crime.^^^ 

S   1734.   For  slander  —  words  spoken  in  a  foreign  language. 

Fonii  No.  433. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That   on  the    day   of    ,   18 . . ,   at 

,  the  defendant,  in  the  presence  and  hearing  of 

divers  persons  who  understood  the  [German]  language,  spoke 
concerning  the  plaintiff  the  following  words  in  the  said 
[German]  language  [here  set  forth  the  words  in  the  German 
or  foreign  language];  and  which  said  words  signified,  and  were 
understood  to  mean,  in  the  English  language  [here  set  forth 
a  correct  translation  of  the  words  in  English];  and  the  said 
[German]  words  were  so  understood  by  the  said  persons  in 
whose  presence  and  hearing  they  were  spoken. 

II.  That  the  defendant  meant  thereby  [set  forth  innuendo]. 

III.  That  the  said  pul)lication  was  false  and  defamatory. 
TV.  That  in  consequence  [state  special  damage]. 

V.  That  by  reason  of  the  spealdng  and  publication  of  the- 
said  false  and  defamatory  words  the  plaintiff  hath  been  injured 

in  his  reputation,  to  his  damage    dollars.     [If 

special  injury  as  to  business  is  alleged,   add,   after  the  word 
"reputation,"  the  words  "and  business."] 
[Demand  of  Judgment.] 

§  1735.  Foreign  language.  Where  the  slanderous  words  were 
spoken  in  n,  foreign  tongue,  they  should  be  set  out  in  the  com- 
plaint in  the  original  language,  accompanied  by  an  averment 

i97Townshond  on  Sland.  and  Lib.  2.^1:  Cooko  Defnm.  24;  Fittlor 
V.  Ypal,  Pas.  K.  R.  .^)42. 

l98Townshpnd  on  Sland.  and  T-ib.  2?,?.. 

in!>  Taylor  v.  Moran,  4  Met.  (Ky.)  127;  Schubert  v.  Richter,  92 
Wis.  199. 


8i  3  LIBEL  AND  SLaXDER.  §§   1T36, 1737 

of  their  meaning  in  Euglisli,  and  it  should  also  be  alleged  that 
the  persons  present  understood  the  language  used.^*^  The  com- 
plaint is,  however,  amendable  in  this  respect  upon  ternis.^^^  In 
the  case  of  foreign  words,  it  must  be  alleged  that  the  persons 
present  understood  them.-"-  But  in  Ohio  it  is  held  where  words 
are  spoken  in  German,  in  a  German  country,  it  will  be  pre- 
sumed that  they  were  understood.-^^ 

§  1736.  For  slander  —  the  words  not  being  actionable  in 
themselves. 

Form  No.  434. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18 . . ,   at 

,  the  defendant  said  to  one  C.  D.,  concerning  the 

plaintiff  ["  He  is  a  young  man  of  remarkably  easy  conscience  "]. 

II.  That  the  plaintiff  was  then  seeking  employment  as  a 
private  secretary  of  said  C.  D.,  and  that  the  defendant  meant 
by  said  words  that  the  plaintiff  was  not  trustworthy  as  a  private 
secretary. 

III.  That  the  said  words  were  false. 

IV.  That  in  consequence  of  the  said  words  [the  said  C.  D. 
refused  to  employ  the  plaintiff  as  private  secretary],  to  his 
damage dollars. 

[Demand  of  Judgmext.] 

§  1737.  Innuendo.  Where  the  words  themselves  are  ambigu- 
ous, and  do  not  necessarily  impute  a  crime,  the  innuendo  can 
not  enlarge  the  meaning  of  the  words  spoken  beyond  the  aver- 
ment of  the  intention  by  which  the  speaking  of  tbo  words  is 
introduced.^'*     It  mny  bo  avorrod  tlint  the  defendant,  l)y  means 

200  T'Coonholts  v.  Booker,  ,S  Den.  PiAC;  Worninntli  v.  rrainer.  .^ 
Wond.   PM:   Lottman   v.   Ritz.   .''.   Sandf.   734;    Ainann   v.    Damm.   8 

r.  p..  rx.  s.)  r.oT. 

201  T-ottnian  v.  Ritz.  Pi  Sandf.  7.^4. 

Sf^s  Wormonth  v.  Cramor.  Pi  Wond.  .IfM:  Rtnrk.  Sland.  300;  Zoicr  v. 
Ort..*?  rimnd.  rwis.)  2^);  Aninnn  v.  Dninin,  H  C.  B.  (N.  S.)  .'07. 

203ReolitcI   V.   Sliatler,  Wri{:lif.   107. 

204  "Weod  v.  Bihbins,  H."  Barli.  ;'.1.":  and  seo  Fry  v.  Bonnoft.  5 
Sandf.  ."4.  As  to  flio  oflioc  of  tlio  innnondo  as  employed  prior  to 
tho  Todo,  oonsnlt  :\Iott  v.  Tonistook.  7  f'ow.  C'tA;  id.  r.r.S;  Tylor  v. 
Tlllotson,  2  ITill.  ."07:  Butler  v.  Wood.  10  TIow.  Pr.  222:  Tillotson 
V.  riiontlinni.  P.  .Tolins.  .^►0:  P,  Am.  Doc  l.">;);  Van  ^'of•llloIl  v.  Hopkins. 
5  Johns.  211;  4   Am.   Deo.   P.P,^:   Lindsey   v.   Smith.   7  Johns.   3.'59; 

110 


^g    l7o8-lMl  I'OKMS    Oi<'    COMl'LAllMTS.  874 

of  the  woiiU,  int-inuaU'il  and  laeant  to  be  understood  by  the 
hearers  as  (.luirgin-;-  the  plaintill  with  tlie  erinie  iniputed.^^ 
But  if  the  words  are  uiianibiguous,  sucli  averment  is  unneces- 
sary.^"^'  And  wliere  the  innuendo  extends  the  meaning,  the 
excess  in  meaning  may  be  disregarded.-"" 

§  1738.  Tenor,  import,  and  effect,  it  is  bad  pleading  to  aver 
in  the  eompUiint  that  defendant  uttered  "•  certain  false  and 
defamatory  words  and  statements,  of  the  following  tenor  and 
import,  and  to  the  followdng  effect;  that  is  to  say,"  etc.,  though 
an  allegation  of  their  "substance"  might  be  sufficient.^"** 

§  1739.  What  words  are  actionable.  Although  words  spoken 
of  a  party  do  not  necessarily  import  a.nything  injurious  in 
themselves,  yet  they  may  when  taken  in  connection  with  other 
charges  made  against  the  party  at  the  same  time.  The  wdiole 
being  spoken  of  the  party  as  a  merchant,  and  with  intent  to 
affect  his  credit,  have  a  very  different  meaning  from  their 
ordinary  one,  and  so  taken  may  sustain  an  action.^*^^ 

§  1740.  Words  of  disgrace.  Mere  words  of  disgrace,  unless 
written  and  published,  are  not  actionable.^^" 

§  1741.  Words  not  per  se  slanderous.  In  actions  of  slajldcr 
for  words  not  in  themselves  actionahle,  the  right  to  recover 
depends  upon  the  question  whether  they  caused  special  dam- 
age, and  the  special  damage  must  be  fully  and  accurately 
stated.211 

Yaufrhan  v.  Havens,  8  id.  100;  ,5  Am.  Dec.  281;  Fry  v.  Bennett,  5 
Sandf.  .54;  Andrews  v.  Woodmansee.  15  Wend.  232;  Cornelius  v. 
Van  Slyck.  21  id.  70;  Croswoll  v.  Weed,  25  id.  G21;  see  §  1G89,  ante. 

205  Rundell  v.  Butler,  7  Barb.  2G0. 

206  Wah-ath  v.  Xellis,  17  How.  Pr.  72.  Tlie  actionable  words  being 
in  the  vernacular  of  the  place  of  publication,  and  unaniI)i.c:uous, 
an  allejration  that  they  were  understood  by  the  jiersons  who  heard 
them  to  have  been  applied  to  the  plaintiff  is  unneccssaiy.  Rhodes 
V.  Naglee,  00  Cal.  077. 

207  Carroll  v.  White.  ?,.'i  Barb.  015;  Weed  v.   Bibbins,  .32  id.  31.5. 
20.S  Forsyth  v.  Edmiston,  2  Abb.  Pr.  430;  Maitland  v.  Goldney,  2 

East.  420;  Cook  v.  Cox.  3  Man.  &  Sel.  110.  As  to  the  former  rules 
of  pleading  and  evidence  in  actions  of  slander,  and  their  operation, 
see  Bisbey  v.  Shaw,  12  N.  Y.  07. 

200  Rcardsley  v.  Tappan,  1  Blatchf.  ,588. 

2io.Tohnson  v.  Brown,  4  Cranch  C.  C.  235. 

211  T.inden  v.  Orahnm.  1  Dner,  072:  Hallock  v.  Miller,  2  Barb.  0.30; 
Evans  v.  Harries.  1  Ilurlst.  &  N.  251;  Hartley  v.  Herring,  8  T.  R. 


875  LIBEL   AND    SLANDEK.  §§    1?4:;^-1T44 

§    1742.   For  slander  respecting  plaintiff's  trade. 
Form  No.  435. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  of  the  commission  of  the  grievances  here- 
inafter mentioned,  the  plaintiff  was  engaged  in  business  as 
merchant  [or  as  the  case  may  be],  and  had  always  maintained 
a  good  reputation  and  credit  as  such   [merchant J. 

II.  That  on  the day  of   ,  18. .,  the 

defendant,  in  the  presence  and  hearing  of  a  number  of  persons, 
maliciously,  and  with  intent  to  cause  it  to  be  believed  that  the 
plaintiff  kept  false  and  fraudulent  books  of  account  in  his  said 
business,  published  the  following  words  concerning  this  plain- 
tiff, and  concerning  his  said  business:  "  He  keeps  false  accounts, 
and  I  can  prove  it"  [or  state  the  words  complained  of]. 

III.  That  the  said  words  were  false. 

IV.  That  in  consequence  of  said  words,  a  number  of  persons, 
and  in  particular  [name  the  persons  referred  to],  who  had  there- 
tofore been  accustomed  to  deal  with  the  plaintiff  in  his  business 
aforesaid,  ceased  to  deal  with  him,  and  the  plaintiff  was  thereby 
deprived  of  their  custom,  and  of  the  profits  which  he  would 
otherwise  have  made  by  a  continuance  of  such  dealing,  and 

was  otherwise  injured  in  his  reputation,  to  his  damage 

dollars. 

[Dejiaxd  of  Judgment.] 

§  1743.  Clerk  or  tradesman.  In  an  action  for  slander, 
where  words  are  charged  to  have  been  spoken  of  and  concern- 
ing a  defendajit,  as  a  clerk  or  tradesman,  which,  it  is  alleged, 
was  his  profession,  it  is  unnecessar}^  to  allege  special  damage.^'^ 

§  1744.  Dishonesty.  I mputat  ions  charging  disbonosty  against 
an  individual  in  connection  with  his  business  are  slanderous 
per  sc."^^^ 

1.^0;  Harrison  v.  Pc^roo.  F.  it  V.  ".07;  see  §§  171.".  17:',1.  nnlc.  When- 
tho  words  spokon  woro  iiol  .-ictionablo  per  sr.  imd  the  coiiii'ljiint 
allefTfs  extraneous  farts  sliowinjr  tlioir  slnnderous  nicanintr.  the 
philntltT  innst  jn-ove  snfli  oxtranoons  fiu-ts,  and  tlie  dofrndaiit  may 
plvp  evidence  to  tlie  contrnry  under  ;i  j,'ener:il  deniiil.  Xidever  v. 
Hall,  07  Tal.  70. 

2i2Rntlpr  V.   Howes.   7  f'al.   ST:   §   171.^..   ni,fr. 

213  Fowles  v.  Bowen.  P.O  X.  V.  'JO;  Morasse  v.  Tlrorlin,  1.^.1  Mass. 
r>r,7;  21  Am.  St.  Rep.  471:  Mrililile  v.  l'ioii«cr  I'ress  Co..  34  Minn. 
342. 


§§    1745-1749  FORMS    OF    COMPLAINTS. 


876 


g  1745.  Ignorance  and  want  of  skill.  linputatioiis  of  gross 
igiioriUKc  ami  want  of  skilL  in  liis  profession,  as  against  a 
physician,  are  libelous.^^^     -  • 

§  1746.  Insolvency.  An  imputation  of  insolvency  against  a 
petty  trader  is  actionable.^^^ 

§  1747.  Mechanical  trade.  Words  imputing  to  a  mechanic 
want  of  skill  or  knowledge  in  his  craft,  are  actionable,  per  sc, 
if  they  are  clearly  shown  to  have  been  spoken  with  reference 
to  the  plaintiff's  occupation,  and  the  employment  is  one  re- 
quiring peculiar  knowledge  and  skill.^^" 

§  1748.  Physician.  Where  words  are  actionable  only  because 
spoken  of  the  })laintiff  in  his  business  or  profession,  averments 
by  way  of  inducement  and  colloquium  shoidd  be  inserted.  If 
a  physician  brings  an  action  for  the  speaking  of  words  which 
are  disgraceful  to  him  in  his  profession,  he  must  aver  in  his 
complaint  that  he  was  a  practicing  physician  at  the  time  the 
words  were  uttered,  and  that  they  were  spoken  of  and  concern- 
ing him  in  his  profession;  otherwise  it  is  demurrable.^^'^ 

§  1749.  Special  damages.  In  an  action  for  slander  for  words 
spoken  of  the  plaintiiT  in  his  trade  or  business,  with  a  general 
allegation  of  loss  of  business,  the  jury  may  assess  damages  for 
a  general  loss  or  decrease  of  trade.  As  a  general  rule,  the 
customers  so  lost  should  be  named.^^^  The  loss  of  a  customer 
is  special  damage,  although  if  the  dealing  had  taken  place  the 
plaintiff  would  have  lost  by  it.^^^ 

214  Secor  V.  Han-is,  18  Barb.  42,5;  Carroll  v.  White.  33  id.  015; 
Cruiksliank  v.  Gordon,  118  N.  Y.  178. 

215  Carpenter  v.  Dennis,  3  Sandf.  .30,5. 

21G  Fitzgerald  v.  Redfield,  .51  Barb.  484;  S.  C,  36  How.  Pr.  97. 

217  Carroll  v.  White,  33  Barb.  615. 

2i8Mayne  on  Damapes,  278.  317;  2  Phlll.  Ev.  248;  Feise  v.  Lindor, 
3  Bos.  &  Pul.  372;  Tobias  v.  Harland,  4  Wend.  ,537;  Haliock  v.  Miller, 
2  Barb.  6.30;  see  §  l(t82.  ante. 

219  Storey  v.  Challands,  8  Car.  «S:  P.  234.  P^or  cases  on  the  subject 
of  averrin,2:  special  damaires  in  actions  of  slander,  see  Hallock  v. 
]\riller,  2  Barb.  630;  Keenliolts  v.  Becker,  3  Den.  346;  Beach  v. 
r.anney,  2  ITill,  .300;  Ilerrir-k  v.  Laphani,  10  .Johns.  281;  Olmstead 
T.  :\Iillor.  1  Wend.  .506;  Rewall  v.  Catlin,  3  id.  201;  Williams  v.  Hall, 
10  id.  305;  Shipman  v.  Buitows,  1  Hall.  .300;  Hareonrt  v.  Harrison, 
id.  474;  Ledlie  v.  Warren,  17  Mont.  1.50.  For  averment  of  special 
damages,  see  Turner  v.  Foxhall,  2  Crauch  C.  C.  324. 


877  LIBEL    AND    SLANDER.  §§    1750-1755 

§   1750.  Special  averment — discharge  from  employ. 
Form  No.  4j6. 

That  by  reason,  etc.,  one  A.  B.,  who  had  theretofore  retained 

plaintill'  in  tiie  capacity  of   ,  for   , 

afterwards,  on ,  discharged  the  plaintiff  from  his 

employ. 

§   1751.   Special  averment  —  refusal  to  deal. 

jForni  No.  43/. 

That  by  reason  of  the  committing  of  the  said  grievances  by 
the  defendant,  E.  F.,  G.  H.   [etc.,  who  had  theretofore  dealt 

with  the  plaintiff  in  his  trade  of  a ,  by  him  then 

and  since  carried  on],  aftenvards  declined  to  have  any  dealings 
with  the  plaintiff. 

§   1752.   Special  averment  —  refusal  to  employ. 

Form  N'o.  43S. 

That  by  reason  of  said  slander,  one  E.  F.,  who  before  was 
about  to  employ,  and  would  have  employed  the  plaintiff  as  his 
servant  for  certain  wages,  aftenvards,  and  before  the  commence- 
ment of  this  suit,  refused  to  employ  the  plaintiff  in  his  service; 
and  the  plaintiff  from  thence  remained  out  of  employment  for 
months. 

§    1753.   Special  averment  —  refusal  to  I'etain  in  employ. 
Form  No.  439. 

That by  reason  [etc.],  one ,  who 

otherwise  would  have  retained  the  plaintiff  in  the  capacity  of 

in  his  business  of    for  wages, 

afterwards  declined  so  to  do;  whereby  the  plaintifV  lost  [etc.], 
which  would  otherwise  have  accrued  to  him  [etc.]. 

§   1754.   Special  averment — refusal  to  sell. 
Fortn  No.  440. 

That  by  reason  [etc.],  one  A.  B.,  who  would  otherwise  have 
sold  to  the  plaintiff  certain  goods,  to-wit  [mention  goods],  on 
credit,  afterwards  refused  so  to  do;  whereby,  etc. 

§   1755.   For  slander  — charging  a  criminal  offense. 

Form   No.   441. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

T.  Tliat  at  the  time  of  the  commission  of  llio  griovancrs  hore- 
innftor  montionnfl.  Jlio  plniutifT  sustainerl  n  rroorl  nnmo  and 
charnfter  among  his  neighbors  and   ac(|unintnnre«.   for  moral 


§  1756  FORMS  OF  COMPLAINTS.  878 

worth  and  integrity,  and  was  never  suspected  of  the  crime  of 
forgery. 

II.  That  on  the ; .   day  of   ,  18. .,  the 

defendant,  in  the  presence  and  hearing  of  a  number  of  persons, 
spoke  the  following  words  concerning  the  plaintilf:  "  He  is  a 
forger." 

III.  That  the  said  words  were  false. 

IV.  That  in  consequence  of  the  said  speaking  of  said  words 
the  plaintilf  has  been  greatly  injured  in  his  good  name  and 
reputation,  to  his  damage  dollars. 

[Demand  of  Judgment.] 

§  1756.  Actionable  language.  When  language  imputes  a 
charge  which,  if  true,  will  subject  the  party  charged  to  an 
indictment  for  a  crime  involving  moral  turpitude,  or  subject 
him  to  an  infamous  punishment,  it  is  actionable  per  se.^^ 
And  this  rule  has  been  followed  in  most  of  the  states.^^  In 
some  of  the  states,  it  seems  that  all  oral  language  which  im- 
putes an  indictable  offense,  or  an  offense  punishable  at  law,  is 
actionable  per  se;'^-^  or  an  indictable  offense.^^^  While  in  some 
other  states,  to  be  actionable  they  must  impute  not  only  an 
indictable  offense,  but  such  for  which  corporal  punishment 
may  be  inflicted  as  the  immediate  penalty.^^'*  Words  which 
impute  trespass,  assault,  battery,  and  the  like  are  not  actionable 
per  se,  and  yet  those  offenses  are  punishable  by  indictment.^^ 

220  Townshend  on  Slander  and  TJbel,  152. 

221  See  Brooker  v.  Coffin,  5  Johns.  188;  4  Am.  Dec.  337;  Young  v. 
Miller,  3  Hill,  22.;  see,  also,  Wright  v.  Paige,  30  Barb.  438;  Van 
Ness  V.  Hamilton,  19  Jobns.  3G7;  »  Wend.  141;  23  Conn.  585;  Andres 
V.  Koppenheafer,  3  Serg.  &  R.  255;  8  Am.  Dec.  (M7;  Todd  v.  Rough, 
10  Serg.  &  R.  18;  McCuen  v.  Ludlum,  2  Harrison  (N.  .7.),  12;  Johnson 
V.  Shields,  1  Dutcher,  IIG;  Gage  v.  Shelton,  3  Rich.  242  (S.  C.  L.  R.); 
Kinney  v.  Hosea,  3  Harr.  (Del.)  77;  Johnston  v.  Morrow,  9  Porter 
(Ala.),  .524;  Taylor  v.  Kneeland,  1  Doug.  (Mich.)  07;  21  Penii.  St. 
522;  Billings  v.  Wing,  7  Vt.  439;  1  Am.  Lead.  Cas.  113,  3d  ed. 

222  Poe  V.  Grever,  3  Sneod,  0(50;  Dunnell  v.  Fiske,  11  Meto.  ,551; 
Edgerly  v.  Swain,  32  N.  H.  481;  Tennoy  v.  Clement,  10  id.  57;  Noyes 
V.  Hall,  02  id.  594;  De  Pew  v.  Robinson,  95  Ind.  109;  Posnett  v. 
Marble.  02  Vt.  481;  22  Am.  St.  Rep.  126;  Klewin  v.  Brauman,  53 
Wis.  244. 

223  Kinney  v.  Hosea,  3  Harr.  77. 

224  Birrli  v.  Benton,  20  Mo.  1.53;  Billings  v.  Wing,  7  Vt.  439. 

22.1  Sniitli  V.  Smith,  2  Sneed,  478;  Dudley  v.  Horn,  21  Ala.  379; 
Billings  V.  Wing,  7  Vt.  439. 


879  LIBEL    AXD    SLANDER.  §§    1T5T-1T59 

§    1757.   Words  subjecting  plaintiff  to  criminal    prosecution. 
Words  imputing  to  plaiutilt'  an  act  subjecting  him  to  a  criminal 
prosecution,  must  also  impute  moral  turpitude,  or  something 
infamous  or  disgraceful,  detracting  from  the  character  of  the 
offender  as  a  man  of  good  morals.^^*' 

§  1758.  For  slander  —  words  directly  charging  a  criminal 
offense  —  several  causes  of  action. 

Form  No.  442. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,18..,  at 

,  tiie  defendant,  in  a  certain  discourse  which  he 

had  with  one  A.  B.,  in  the  presence  and  hearing  of  divers  per- 
sons, spoke  the  following  words  concerning  the  plaintiff  [set 
forth  the  words]. 

II.  That  on  the    day  of    ,  18..,  at 

,  the  defendant,  in  a  certain  other  discourse  which 

he  then  had  in  the  presence  and  hearing  of  divers  other  per- 
sons, spoke  concerning  the  plaintiff  the  following  other  words 
[set  forth  the  words]. 

III.  That  all  said  words  were  false  and  defamatoiy. 

IV.  That  in  consequence  of  the  said  speaking  of  said  words, 
etc. 

[Demaxd  of  Judgment.] 

§  1759.  Words  charging  offenses.  Words  charging  a  l)urn- 
ing  amounting  to  arson,  whetlier  by  common  law  or  by  statute, 
are  actionable.  So  of  a  general  cliarge  of  forgery.  Bo  of  a 
general  charge  of  being  a  murdoror.  80  of  a  goiici-nl  cliarge 
of  being  a  thief.  So  of  a  charge  of  larceny,  or  a  taking  aiiinio 
furandi  the  personal  property  of  anotlicr.  Or  imputations 
charging  a  person  willi  l)cing  a  receiver  of  stolon  goods.--"     So 

22fl  Quinn  v.  O'Gara,  2  E.  D.  Kinith,  .SS8;  Tike  v.  Van  Winner.  ^ 
How.  Pr.  171;  Dlas  v.  Short.  10  id.  :?22:  Weed  v.  Bibbiiis,  .32  Barb. 
31^}.  Spoken  words  in  order  to  be  defaniatoi-y  of  one  in  res])oct  to 
his  jinblif  offlre  n(M>d  not  import  a  cliarf^o  of  rriine.  Sillars  v.  Col- 
lier. 1.'')1  Mass.  r.O. 

227  r)ias  v.  Sliort,  If".  How.  I'r.  .''.22.  As  to  the  inipniatlon  of  stoal- 
Inp  Koods,  wlipn  ,'ind  wlicrn  not  sl.-indfrous  per  sc.  ami  to  wliMt  I'xtcnt, 
SCO  Coleman  v.  Playstcd.  .".f.  P.Mrl).  2*',;  Ma.vbci-  v.  Fisk,  42  id.  .'V2f>; 
Btumer  v.  Pitchman,  124  111.  250;  Frolieb  v.  McKieruau,  84  Cal.  177. 


i<^  1700,  1701      FORMS  OF  COMPLAINTS.  880 


of  a  direct  charge  of  perjury,^'^  JSo  of  an  iinputation  of  willful 
perjury  in  a  suit  pending.^--* 

§   1760.   Slander  —  for  words  directly  charging  perjury. 

i-'orm  No.   443. 

[Title.] 

The  phuntilf  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18 .  .,  at 

,  the  defendant,  in  a  certain  discourse  which  ha 

then  had  concerning  the  plaintiif,  in  tlie  presence  and  hearing 
of  divers  persons,  spoke  and  })ublished  concerning  the  plaintiff 
the  words  following:  "  You  perjured  yourself." 

II.  That  said  words  were  false. 

III.  That  in  consequence  of  the  said  words  the  plaintiff  is 
greatly  injured  in  liis  good  name  and  reputation,  and  has  been 
rendered  liable  to  prosecution  for  perjury,  to  his  damage 
dollars. 

[Demand  of  Judgment.] 

§  1761.  Construction  of  words.  In  an  action  for  slander,  in 
charging  the  plaintiff  with  perjury,  if  it  appears  that  the  words 
used  to  express  the  charge  are  such,  in  the  sense  in  which  they 
would  naturally  ho  understood,  as  to  convey  to  the  minds  of 
those  to  whom  they  are  addressed  the  impression  that  the  plain- 
tiff had  committed  perjury,  and  that  the  defendant  intended 
to  be  so  understood  by  those  who  heard  him.  such  words  will 
of  themselves  warrant  a  verdict  for  the  plaintiff,  in  case  the 
jury  find  that  they  were  uttered  with  the  intention  above  stated, 
and  were  so  understood;  and  it  is  not  necessary  to  give  addi- 
tional evidence  that  the  suit  was  in  a  court  of  competent  juris- 
diction, or  that  the  plaintiff  swore  falsely,  with  a  corrupt 
intent.230 

22a  Seo  Townshenrl  on  Sland.  and  Lib.  1(5.5  et  seq.,  and  the  cases 
there  cited;  Wilbur  v.  Ostrom,  1  Abb.  Pr.  (N.  S.)  275;  Gudger  v.  Pen- 
land,  108  N.  C.  593;  2.3  Am.  St.  Rep.  73. 

229  Walrath  v.  Nellis,  17  How.  Pr.  72;  Baker  v.  Williams,  12  Barb. 
527.  It  is  not  necessary  upon  a  charge  of  slander,  falsely  accusing 
the  plaintiff  of  setting  fire  to  a  warehouse,  to  allege  that  the  ware- 
house was  consumed  or  destroyed  by  the  fire.  Clugston  v.  Garret- 
son,  103  Cal.  441. 

230  Kern  v.  Towsley.  .51  Barb.  3S5.  Where  the  complaint  avers 
witli  suflicient  certainty  that  the  defendant  charged  the  plaintiff 
with  having  sworn  to  a  lie  when  examined  as  a  witness  in  a  cer- 
tain criminal  court  at  a  certain  term  against  certain  persons,  the 


881  LIBEL    AND    SLAXULK.  §§    lTG2jlTG3 

§  1762.  Perjury  in  another  state.  In  a  declaration  for 
slander,  in  charging  the  plaintiff  with  perjury  in  another  state, 
it  must  be  averred  that  by  tlie  laws  of  such  other  state,  perjury 
is  an  offense  to  which  is  annexed  an  infamous  punishment.^^ 

§    1763.   Slander  —  for  words  charging  perjury  and  containing 
special  inducements. 

For))i  No.   444. 
[Title.] 

The  plaintiff  complains,  and  alleges:  • 

I.  That  on  the    day  of    ,   18..,   at 

,  a  certain  action  was  pending  before  A.   B.,  a 

justice  of  the  peace  in  and  for  the  county  of  , 

wherein  C.  D.  was  plaintiff  and  E.  F.  was  defendant,  and  in 
which  suit  the  plaintiff  was  duly  sworn  before  the  said  justice, 
and  gave  his  evidence  as  a  witnc;^s.  on  the  trial  of  said  action, 
and  testified  that  he  "  did  not  know  that  one  M.  had  run  away;  " 
the  fact  whether  the  said  ]\I.  had  run  away  or  not  being  material 
in  said  action. 

IT.  That  on  the   day  of   ,  18..,  at 

,  the  defendant,  in  a  discourse  w^hich  he  had  in 

the  presence  and  hearing  of  sundry  persons,  spoke  and  pub- 
lished of  and  concerning  the  plaintiff,  and  concerning  the  said 
trial  and  testimony  of  the  plaintiff  as  a  witness  in  relation  to 
said  M.,  the  false  and  scandalous  words  following:  "  He  swore 

to  a  lie  at ,  in  the  suit  between  C.  D.  and  E.  F.; 

he  said  he  did  not  know  that  ]M.  had  run  away,  and  it  was  a 
lie  for  he  did  know  it;"  meaning  that  the  plaintiil',  at  the 
trial  of  the  action  aforesaid,  had,  as  a  witness,  sworn  falsely, 
and  committed  willful  and  corrupt  perjury. 

III.  That  in  consequence  of  said  speaking  of  said  words,  etc. 
[as  in  preceding  form]. 

[Demand  of  Judgment.] 
Where  a  complaint  in  slander  alleges  that  the  slanderous 
words  were  spoken  in  -a  judicial  proceeding,  the  fact  alone  tliat 

appollatp  court  will  take  judicial  notifo  of  the  court  montionorl. 
and  that  It  had  jurisdiction.  GudK'-r  v.  PcnJand.  108  N.  C.  r)93:  23 
Am.  Kt.  l{ep.  ~?,. 

231  SpaiTONv  V.  Maynard.  S  .Tones  Ti.  ^N'.  C.\  VXt.  As  to  flie  ohar>:o 
of  false  swi-ariiitr.  and  the  extent  of  the  resiK)nsiliiIity  of  the  do- 
frndant,  sfo  Wilbur  v.  Oslrum.  1  Abb.  Tr.  (N.  S.I  27.'»:  Nisscn  v. 
Cramer,  104  N.  C  .'74:  Davis  v.  Davis.  S?  Tenn.  200;  Weil  v.  Israel. 
42  La.  Ann.  ^T^n. 

Vol.  I— 111 


^    i;  Go  i'OKilS    OF    C'O.Ml'LAlNT.S.  883 

ihc  slaiuloror  was  prosecutor  in  such  proceeding  is  no  absolute 
or  j)resumptive  protection  against  his  liability.^^  The  eoni- 
[ihiint  need  not  set  forth' the  hmguage  or  substance  of  the 
lestinuuiy  delivered  hy  the  plaintitl'  as  a  witness  at  a  trial,  and 
referred  to  by  the  defendant  as  constituting  false  swearing, 
unless  the  latter,  when  uttering  the  slanderous  words,  specified 
what  the  plaintiff  did  swear,  or  in  what  particulars  his  testi- 
mony ^^■as  false.^^^ 

232Gu{lger  V.  Penland,  108  N.  C.  593;  23  Am.  St.  Rep.  73. 

233  Id. 


CHAPTER  IV. 

MALICIOUS  PKOSECUTIOX. 

§   1764.   Common  form. 

Form  No.  445. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18..,   at 

,  the  defendant  ohtained  a  warrant  for  the  arrest 

of  this  plaintiff  from   [a  police  Justice  of  the 

said  city,  or  as  the  case  may  be  ] ,  on  a  charge  of , 

and  the  plaintiff  was  arrested  thereon,  and    imprisoned    for 

days  [or  hours],  and  gave  bail  in  the  sum  of 

dollars  to  obtain  his  release. 

II.  That  in  so  doing  the  defendant  acted  maliciously  and 
without  probable  cause. 

III.  That  on  the day  of ,  18 .  . ,  the 

said  justice  dismissed  the  complaint  of  the  defendant,  and  ac- 
quitted the  plaintiff  [or,  the  grand  jury  of  the  county  of 
ignored  the  bill  against  the  plaintiff,  or  other- 
wise show  a  termination   favorable  to  him]. 

IV.  That  many  persons,  whose  names  are  unknown  to  the 
plaintiff,  hearing  of  the  said  arrest,  and  supposing  the  plaintiff 
to  be  a  criminal,  have  ceased  to  do  business  with  him  [or  that 
in  consequence  of  the  said  arrest,  the  plaintiff  lost  liis  siluntion 
as  clerk  to  one  A.  B.],  and  has  been  otherwise  injured  in  liis 
good  name  and  reputation,  and  whereby  and  by  means  wlu'reof 
he  hath  sustained  damage  in  the  sum  of dollars. 

[Demand  of  Judgment.] 

?  1765.  Causes  of  action  not  asslg'nable.  Causes  of  action 
arising  out  of  personal  torts  wbich  do  not  survive  to  tlie 
personal    roprcsontati^^>s    of    a    pnrty.    are    not    assignable.* 

1  Znbrlsklo  v.  Rmini.  1?.  N.  Y.  ?,22:  HI  Am.  V^i-r.  r,."! ;  :in  Rnrb.  270; 
Hoyt  V.  Tlinnij)snn.  .''.  X.  Y.  .'^47:  Bityd  v.  Blankiiian.  20  Cal.  IH;  S7 
Am.  Deo.  14^;  ronippys  v.  Vassp,  1  Ppt.  lOH:  Sanborn  v.  Doo.  02 
Pal.  ^'r,2■.  11  Am.  St.  ■Rf'p.  101;  Murray  v.  Bn.-ll,  70  Wis.  r,,%7:  20  Am. 
St.  Rep.  92;  Averill  v.  Lonpfellow,  GG  Me.  237.    Otherwise  In  Iowa. 


^^    lUUi,  lUiT  PORMS   OF   COMPLAINTS.  884 

So  II  cause  of  action  for  a  maliciouij  prosecution  is  not 
aijsiguable.^ 

§  1766.  Conspiracy.  When  two  or  more  perscms  are  sued  for 
a  joint  wrong  done,  it  may  be  necessary  to  prove  a  previous 
combination  between  them  in  order  to  secure  a  Joint  recovery; 
but  it  is  not  necessary  to  aver  this  previous  combination  in  the 
complaint,  and  if  averred,  it  is  not  to  be  considered  as  of  the 
gist  of  the  action.^  An  allegation  that  the  defendants  have 
fraudulently  confederated  and  conspired  together  for  the  pur- 
pose of  harassing  the  plaintiff,  by  prosecuting  separate  suits 
against  him  for  the  same  cause,  and  that  such  suits  have  been 
commenced  and  are  prosecuted  in  pursuance  of  such  conspiracy, 
is  not  sufficient  to  sustain  an  action  or  uphold  an  injunction, 
when  the  defendants  claim  adversely  to  each  other,  as  well 
as  to  the  plaintiff,  and  no  direct  fraud  is  charged;  the  plaintiff 
merely  averring  his  belief  of  such  conspiracy,  because  the  de- 
fendants have  brought  separate  actions  for  the  same  cause,  and 
by  the  same  attorney.  Fraud  in  such  a  case  is  not  to  be  pre- 
sumed; and  the  conspiracy  should  be  distinctly  averred.* 

§  1767.  Conspiracy,  averments  in  action  of.  In  an  action  for 
a  conspiracy  the  rule  is  to  allow  a  great  latitude  in  setting  out 
in  the  complaint  the  particular  acts  from  which  the  conspiracy 
is  to  be  inferred,  even  so  far  as  to  allow  the  individual  acts 
of  the  conspirators  to  be  averred.^  So  far  as  the  allegations 
of  such  acts  are  scandalous,  they  should  be  stricken  out,  unless 
they  appear  to  relate  to  the  foundation  of  the  plaintiff's  action.^ 

See  Yimont  v.  Railroad  Co.,  04  Iowa.  513.  Actions;  for  malicious 
prosecutions  are  not  favored  in  law,  though  upheld  when  the  proper 
elements  of  malice  and  want  of  probable  cause  are  shown.  Ball 
V.  Rawles,  93  Cal.  222;  27  Am.  St.  Rep.  174. 

2  Lawrence  v.  IMartin,  22  Cal.  173. 

a  Ilerron  v.  Huchf^s,  25  Cal.  .500. 

4  McHenry  v.  Hazard,  45  Barb.  0.57. 

B  Mussina  v.  Clark,  18  Abb.  Pr.  188. 

1 1d.  In  an  action  charging'  the  defendant  with  a  conspiracy  to 
prospcutp  the  plaintiff  for  a  crime,  and  a  malicious  prosecution  in 
pursuance  of  the  conspiracy,  the  alleged  malicious  proseeution  is 
tl)e  gist  of  the  action.  Taylor  v.  Bidwell,  05  Cal.  489.  A  complaint 
for  malicious  prosecution  again.st  two  defendants  alleging  that  they 
jointly  "  procured  the  arrest  of  plaintiff  on  a  false  charge."  and 
"that  in  procuring  the  arrest  nnd  prosecution  of  the  plaintiff  the 
defendants  acted  maliciously  and  without  probable  cause."  suffi- 
ciently  charges  a  joint  responsibility,    although   other  allegations 


885  MALICIOUS    PEOSECUTIOX.  §§    IT  1)8-1771 

§  1768.  Conviction.  The  fact  that  the  plaiatifl:  was  convicted 
by  a  jury  is  conclusive;  and  if  apparent  in  tlie  complaint  will 
be  fatal  to  the  suit  for  damages.'^  Nor  will  a  reversal  for  error 
of  law  prevent  the  application  of  the  rule.  The  only  exception 
is  when  fraud  in  obtaining  a  conviction,  by  means  which  pre- 
vented the  plaintiff  from  setting  up  his  defense,  is  set  up  and 
proved.  In  a  complaint  of  this  nature,  an  averment  of  matter 
tending  to  show  the  defendant's  motive  was  held  not  to  be 
irrelevant.^  Nor  does  suffering  default  have  this  effect  where 
probable  cause  existed  at  the  first.^ 

§  1769.  Corporation.  An  action  for  malicious  prosecution 
will  lie  against  a  corporation  if  it  has  power  to  authorize  the 
act  done,  and  has  done  so.^" 

§  1770.  Damages.  The  jury  are  the  proper  judges  of  the 
amount  of  damages  to  be  allowed  in  actions  for  malicious  prose- 
cution.^^ Evidence  of  the  general  bad  reputation  of  the  plain- 
tiff is  admissible  in  reduction  of  damages. ^- 

§  1771.  Defective  complaint.  In  an  action  for  malicious  is- 
suing and  prosecution  of  a  writ  of  attachment,  a  defect,  if  any, 
in  the  complaint,  in  not  alleging  that  it  was  issued  without 
probable  cause,  and  stating  instead  that  it  was  issued  out  of 

show  that  one  dofendant  only  swore  to  tho  ooniplaiiit  to  obtain  the 
warrant  for  the  plaintiff's  an-est  and  prosecution.  .Jones  v.  Jenkins, 
3  Wash.  St.  17. 

7  Miller  T.  Deere,  2  Abb.  Pr.  1. 

«  Brockleman  v.  Brandt,  10  Al)b.  Pr.  141:  see  Booghor  v.  Hough, 
99  Mo.  183. 

»  Gordon  v.  Uphani.  4  K.  D.  Smith,  !). 

lOBance  v.  Erie  Railway  Co.,  32  X.  .T.  L.  3.'^4;  90  Am.  Dec.  Gfi.^; 
Hussfy  V.  Railroad  Co..  98  N.  C.  34;  2  Am.  St.  Rt^p.  312;  Williams 
V.  Insuranr-e  Co.,  .'7  Miss.  7.")9;  .34  Am.  Rep.  494;  Carter  v.  Howe 
Machine  C-o.,  r>1  Md.  2(X>:  .34  Am.  Rep.  311.  See  As.><anll  and  Bat- 
tery. That  a  con)oratlon  is  not  liable  fo  .sudi  an  act  inn,  but  may 
be  sued  in  trosijass  for  falso  iniiirisonint'iU.  See  Owlsley  v.  Monl- 
goraerj'  R.  R.  Co..  .37  Ala.  r,m. 

11  Cliapman  v.  Dodd,  10  Minn.  .3.V).  Injury  to  tlie  plaintiff's  feel- 
ings, f-aused  by  tlio  arrost,  may  1k>  i)rovod  under  the  general  allega- 
tion of  damages,  and  noe<l  not  be  .'spofially  pleaded.  Shatto  v. 
Crofker.  87  Cal.  f;29;  .Tafkson  v.  Bell,  r,  S.  l>ak.  2."7. 

i2Fltzgil)bon  V.  Brown,  43  Me.  109;  see,  also.  Wliite  v.  Tucker, 
16  Ohio  St.  408. 


g  1772  FORMS  OF  COMPLAINTS.  886 

wantoimcss,  is  cured  by  vcrtlict  when  the  defect  wds  not  pointed 

§  1772.  Essential  averments.  In  an  action  for  malicious 
prosecution  tlie  plaintill"  must  aver  and  must  prove  an  entire 
want  of  probable  cause  of  the  accusation,  and  actual  malice  of 
the  defendant  in  preferring  it;  that  is,  malice  in  fact,  as  dis- 
tinguished from  malice  in  law.^'*  Both  malice  and  want  of 
probable  cause  are  essential,  and  inust  be  stated  and  proved; 
also,  that  the  prosecution  is  at  an  end,  and  how  it  w^as  con- 
cluded.^'^ An  averment  that  the  prosecution  was  without  prob- 
able cause  is  indispensable,  and  its  omission  fatal, ^^  the  want 
of  probable  cause  being  the  primary  question  in  such  actions.^''' 
For,  though  malicious,  the  defendant  is  not  lia])le  unless  there 
be  a  want  of  probable  cause. ^^  The  necessity  of  the  concur- 
rence of  all  three  of  the  above  elements,  /.  c,  want  of  probable 
cause,  malice  in  fact,  and  actual  determination  in  favor  of  the 
plaintiif,  is  maintained  in  numerous  cases. ^^ 

13  Levey  v.  Fargo,  1  Nev.  415.  Where  the  complaint  in.  an  action 
for  damages  for  a  malicious  attachment  upon  a  debt  that  had  been 
paid  before  the  attachment  suit  was  commenced  alleges  that  judg- 
ment was  rendered  and  entered  in  favor  of  the  defendant  in  the 
attachment  suit,  such  allegation  is  sufficient,  and  it  is  unnecessary 
to  allege  further  that  the  judgment  was  in  full  force  and  effect,  and 
not  vacated,  set  aside,  reversed,  or  appealed  from.  Carter  v.  Paige, 
80  Cal.  390.  A  complaint  in  an  action  for  malicious  attachment 
that  does  not  allege  the  want  of  proliable  cause  is  fatally  insufficient. 
Witascheck  v.  Glass,  46  Mo.  App.  209;  Moody  v.  Deutsch,  85  Mo. 
237;  and  see  Mitchell  v.  Silver  Lake  Lodge.  29  Oreg.  294. 

11  Bulkeley  v.  Smith,  2  Duer,  261;  Besson  v.  Southard,  10  N.  Y. 
236. 

15  Brown  v.  Chadsey,  39  Barb.  2.")3;  Hull  v.  Vreeland,  42  id.  .543; 
S.  C,  18  Abb.  Pr.  182;  McKown  v.  Huntei-,  .30  N.  Y.  62.5;  Bitter  v. 
Ewing.  174  Penn.  St.  341;  Porter  v.  .Tohnson,  96  Ga.  145. 

ifilx)hrfink  v.  Still,  10  Md.  530. 

17  Grant  v.  Moore,  29  Cal.  644;  Duncan  v.  Griswold,  92  Ky.  546. 

18  Payson  v.  Caswell,  9  Shepley.  212;  Wood  v.  Weir,  5  B.  Mon.  544; 
Leidig  v.  Rawson,  1  Scam.  272;  29  Am.  Dec.  354. 

i»  Vanderbilt  v.  Mathis,  5  Duer,  304;  see,  also,  as  to  pleading, 
Davis  V.  Clough.  8  N.  II.  1.57;  Weinberger  v.  Shelly.  6  Watts  &  Serg. 
.'«6;  Horton  v.  Smeltzer,  5  Blackf.  428;  Cole  v.  Hanks,  3  Mon.  208; 
see,  also,  Kiohjirdson  v.  Vii-tue,  2  Hun,  208;  Brown  v.  Willoughby, 
5  Col.  1;  Anderson  v.  How.  116  N.  Y.  .336;  Boeger  v.  Langonborg, 
97  Mo.  390;  10  Am.  St.  Rep.  322;  Ball  v.  Rawles,  93  Cal.  222;  27  Am. 
St.  Rep.  174. 


887  MALICIOUS  PROSECUTION.  §§    1773-1777 

§  1773.  Facts  only  must  be  alleged.  lu  au  action  for  ma- 
licious prosecution,  only  the  substantial  matter  constituting  the 
action  —  that  is,  facts,  and  not  the  evidence  of  facts  —  need 
be  set  out.^  The  point  of  inquiry  in  such  an  action  is  whether 
there  was  in  fact  probable  cause  for  the  prosecution,  and  not 
whetlier  the  defendant  had  probable  cause  to  believe  there  w^as.-^ 

§  1774.  Gist  of  action.  The  action  lies  against  several  de- 
fendants, and  the  gist  of  the  action  is  the  malicious  prosecu- 
tion.22 

§  1775.  Indebtedness.  The  averment  of  no  indebtedness 
may  be  omitted,  and  a  suit  maintained  for  maliciously  suing 
out  an  attachment.^ 

§  1776.  Joint  agency,  allegation  of.  In  a  suit  against  three 
defendants  for  malicious  prosecution,  the  complaint  averred 
that  "  defendants,  contriving  and  maliciously  intending  to  in- 
jure the  plaintiff,"  etc.,  falsely,  maliciously,  and  without  prob- 
able cause,  procured  liini  to  I)C  indicted  for  murder,  it  was  held 
that  the  complaint  sufficiently  avers  a  joint  agency  on  the  part 
of  defendants  in  instituting  the  prosecution.-^ 

§  1777.  Malice.  Malice  and  falsehood  are  essential  ingre- 
dients in  an  action  for  malicious  prosecution.^''*  j\Ialice,  as  well 
as  want  of  probable  cause,  is  necessary  to  sustain  an  action  for 
malicious  prosecution.^"  Malice,  in  its  legal  sense,  means  a 
wrongful  act,  done  intentionally,  without  just  cause  or  excuse.^^ 

20Dreux  v.  Donief,  18  Cal.  83. 

21  Hickman  v.  Griffin.  «  Mo.  37:  34  Am.  Dec.  124. 

22r)reux  V.  Domof,  18  Cal.  83;  Taylor  v.  Bidwell.  0.'  Pal.  480. 
Where  wrc»uK  and  in.juiy  is  done  by  a  malicious  suit.  il  is  liold  to 
ho  Immaterial.  niKin  i)rinciiilc,  whetlier  the  court  had  .jurisdiction 
or  not  to  entertain  such  suit,  in  order  to  recover  for  the  malicious 
prosecution.    Autcliff  v.  .Tune,  81    Mich.  477;  21   Am.   St.   Kep.   r.:r.. 

2.'?  Tomlinson  v.  Warner,  9  Ohio.  103. 

24  Dreu.x  v.  Domec,  IS  Cal.  83. 

25  Piatt  V.  Niles,  1  Edm.  2:'.0:  Smith  v.  lnsm-.'inc(>  Co..  107  Cal.  432. 
2«Riney  v.   Vanlandin>:liam.  it   Mo.  so?:   Frissell   v.   Kelfe.   id.  840; 

Emerson   v.  Cocliran.   Ill    P<'iin.   St.  ''.i',):   Lav.ndcr   v.   llml.iiens.  32 
Ark.  703:  Col.-iuim  v.  All.'ii.  TO  Ca.  i;.".7:  11    Am.  St.   K-M'.    I  10. 

27Mayn:ir<l  v.  I'.  I'niul  ins.  Co..  :'.!  <"al.  IS;  '.H  .\in.  Do.'.  OT'J. 
Malice  menus  that  the  wrontrdoer  not  only  intended  to  do  the  act 
which  Is  ascertained  to  be  wrongful,  but  that  Ik-  knew  it  was  wrong- 
ful when  he  did  it.     Wltascheck  v.  Class.  4f;  Mo.  App.  200. 


§§    1778,  IT^U  I'OU-Mb    OF    L'U.UI'LAINTS.  888 

Malice  can  iiol  be  jjresuiuccl  in  a  prosecutiou  where  the  defend- 
ant has  incurred  ail  the  moral  guilt  oi  the  charge,  although  he 
may  have  evaded  the  penalty  of  the  law.^®  Malice,  like  i'raud, 
is  to  be  inferred  from  faets  and  circumstances.-"  A  petition 
wiiich  omits  to  state  that  tiie  prosecution  was  malicious,  and 
that  tiie  plaintilf  was  acquitted,  i8  insuliicient.''^'  rublic  policy 
ami  security  require  that  proseeutors  shoukl  be  protected  by 
the  law  from  oivil  liabilities,  except  in  those  ca^es  where  the 
two  elements  of  malice  in  the  prosecutor  and  want  of  probahle 
cause  for  the  prosecution  both  occur.^^  If  one  person  arrests 
another  for  the  commission  of  a  crime,  under  the  belief  that 
the  person  arrested  has  committed  the  crime,  the  person  mak- 
ing the  arrest  can  not  be  said  to  act  maliciously,  although  he 
may  act  unlawfully. ^^ 

§  1778.  Motive.  In  an  action  for  malicious  prosecution,  the 
complaint  may  aver  matter  tending  to  show  the  defendant's 
motive;  e.  g.,  a  malicious  publication  by  him  procured  to  be 
made  concerning  the  prosecutor  —  such  as  would  be  proper  tO' 
prove  at  the  trial  as  showing  special  injury.  Such  averments 
shoidd  not  be  stricken  out  on  motion,  as  the  plaintiff  can  not 
be  deemed  aggrieved  by  them.^^ 

§  1779.  Probable  cause.  Probable  cause  may  be  defined  as 
a  suspicion,  founded  upon  circumstances  sufficiently  strong  to 
warrant  a  reasonable  man  in  the  l)elief  that  the  charge  is  true.^^ 
It  is  a  reasonable  ground  for  suspicion,  supported  by  circum- 
stances sufficiently  strong  in  themselves  to  warrant  a  cautious 
man  in  the  belief  that  the  person  accused  is  guilty  of  the 
offense  charged.^^     The   question   of  prol)able   cause  does  not 

28  Sears  v.  Hathav^-ay,  12  Cnl.  277. 

29  Lyon  V.  Hancock.  35  Cal.  .37(i. 

30  Mooney  v.  Kennett,  19  Mo.  .^(il :  Freymark  v.  MolCinnoy  Bread 
Co..  5.5  Mo.  App.  435:  Collins  v.  Campbell,  18  R.  I.  738. 

31  Potter  V.  Scale,  S  Cal.  217. 

32  Lyon  V.  Ilanoook,  35  Cal.  372. 

33  Bro<-kleman  v.  Brandt,  10  Abb.  Pr.  141. 

34  Potter  V.  Seale,  8  Cal.  217:  TTull  v.  Hawkins,  5  Humph.  3.57; 
Paris  V.  Starko.  3  B.  Mon.  4;  Payson  v.  Caswell,  9  Sheplcy,  212:  Mc- 
Lpllan  r.  Cumberland  Bank,  11  id.  500;  4  Dana,  120:  Smith  v.  In- 
surance Co.,  107  Cal.  432. 

3r.  Pvoss  V.  Innis,  .35  111.  487:  85  Am.  Dec.  373;  Clement  v.  Major.  1 
Col.  App.  297:  Brown  v.  Willoughby.  5  Col.  1;  McClafferty  v.  Philp, 
151  Penn.  St.  86. 


889  MALICIOUS    PROSECUTION.  §§    1780-1'<82 

depend  upon  whether  an  oUense  has  been  committed,  nor  upon 
the  guilt  or  innocence  of  the  accused,  but  upon  the  prose- 
cutor's behef  of  the  truth  of  tlie  cliarge  made  by  him.  If 
circumstances  are  shown  sufficient  to  warrant  a  cautious  man 
in  the  belief  of  the  truth  of  the  charge  he  makes,  it  is  enough.^*^ 
And  from  the  want  of  probable  cause,  malice  may  be  inferred,^" 
and  is  a  mixed  ques4:ion  of  law  and  fact.^*  It  is  a  question  for 
the  court,  but  the  jury  must  decide  upon  the  facts. ^^ 

§  1780.  Probable  cause,  when  it  exists.  If  the  defendant  had 
a  cause  of  action  in  the  case  alleged,  although  for  a  much  less 
amount  than  claimed,  there  was  probable  cause,  and  the  court 
should  grant  a  nonsuit.'*"  So  a  judgment  against  the  plaintiff 
after  trial  on  the  merits  is  sufficient  evidence  of  probable  cause, 
tliough  subsequently  reversed;  not,  however,  conclusive,  if  im- 
peached for  fraud.*^  Where  two  actions  have  been  abandoned, 
l)y  the  plaintiff's  failure  to  appear  at  the  adjourned  day,  and 
a  new  action  has  been  commenced  before  another  justice  for 
the  same  demand,  wliich  is  still  pending,  the  litigation  is  not 
terminated,  and  want  of  probable  cause  can  not  be  inferred 
solely  from  the  discontinuance  of  the  former  suits."*^  A  com- 
mittal to  await  the  action  of  the  grand  jury  is  no  conclusive 
evidence  of  probable  cause.^^ 

§  1781.  Privileged  charges.  As  to  the  remedy  by  action  for 
malicious  prosecution,  for  false  and  malicious  charges  preferred 
in  legal  proceedings  and  deemed  privileged  from  an  action  for 
defamation,  see  the  case  cited  in  the  note.'*'* 

§  1782.  Special  damages.  pA'penses  of  counsel,  made  neces- 
sary by  a  malicious  prosecution,  are  to  be  specially  alleged.'*'^ 

36  Sranlan  v.  Cowley.  2  Ililt.  4R0;  soo,  also,  Foote  v.  Milblor,  40 
How.  rr.  :',R:  FnrnaMi  v.  Feelo.v.  r,r,  X.  Y.  4.51;  Carl  v.  Aycrs,  .'..3  id.  14. 

37  WliitPliead  V.  .Tcssup.  2  Col.  App.  7fi:  T.unsford  v.  Dietrich,  8G 
Ala.  2.">0;  11  Am.  St.  Rep.  .''.T:  Crant  v.  Moom  20  Cal.  (M4. 

ssCrant  v.  :\roi>rp.  2U  Cal.  044. 

30  Brant  v.  Hlff^rins,  10  Mo.  72S:  Lonhoy  v.  Mnrfli,  IT..".  Ppnn.  St. 
4.^>S. 

4nc,rnnt  v.  Afooro.  20  Cal.  014. 

41  Palmpr  v.  Aatit.  41  I'.nrh.  200:  Ross  v.  Ilixon.  40  Kan.  r>'tO;  26 
Am.  St.  Rep.  12.?. 

42Palmpr  v.  Avery.  41  P.arb.  200. 

<3TTnupt  V.  Polilman.  10  Abb.  Pr.  r^Ol. 

44  Ppi-idPR  V.  MIfflicll.  ni   Pnrb.  401. 

4fiStran{r  v.  Whitelioad,  12  Wend.  64. 

112 


§$  K83-178G  roHMS  of  comi'LAInts.  SDU 

9  1783.  What  must  be  shown.  To  suslaiii  iiu  action  for  ma- 
licious prosecution,  the  plaintill"  must  show  allinuatively  that 
the  prosecution  was  malicious,  and  without  probable  cause,  both 
concurring.'*'' 

§  1784.  When  action  will  lie.  An  action  for  a  malicious 
prosecution  \vill  lie  where  an  affidavit  for  a  search  warrant  is 
made  before  a  justice,  maliciously,  and  without  probable  cause, 
although  the  magistrate  refuse  to  issue  the  warrant.'*'^ 

§  1785.  When  action  will  not  lie.  Such  an  action  does  not 
lie  where  the  alleged  malicious  suit  was  founded  on  a  just 
claim,  although  such  claim  was  smaller  than  that  for  which 
the  suit  was  brought,  when  it  does  not  appear  that  property 
was  attached  to  a  greater  value  than  the  amount  of  such  claim.'*** 

§   1786.  The  same  —  fuller  form. 

Form  lYo.  446. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18 . . ,   at 

,  the  defendant  appeared  before ,  a 

justice  of  the  peace  of  said  county  [or  the  police  judge  of  said 
city],  and  charged  the  plaintiff,  before  said  justice,  with  having 

feloniously  stolen  a  certain    ,  of  the  defendant; 

and  procured  said  justice  to  grant  a  warrant  for  the  arrest 
of  the  plaintiff  upon  said  charge. 

II.  That  in  so  doing,  the  defendant  acted  maliciously  and 
without  probable  cause. 

III.  That  the  said  justice  issued  said  warrant  accordingly, 
and  the  plaintiff  was  arrested  and  imprisoned  under  the  same 

for [days  or  hours,  and  gave  bail  in  the  sum  of 

dollars  to  obtain  his  release]. 

IV.  That  on  the day  of   18..,  the 

])laintiff  was  examined  before  the  said  justice  for  the  said 
supposed  crime,  and  the  said  justice  adjudged  him  not  guilty, 
and  fully  acquitted  him  of  iho  same;  and  that  since  that  time 

40  Cook  V.  Walker.  ."^O  Ha.  ~)^9:  Dreyfus  v.  Anl,  29  Xeb.  191;  .Toiner 
V.  Steamshii)  Co..  SO  Ga.  2.''.S:  Poi-ter  y.  .Tohnson.  90  iri.  14.";  Otis  v. 
Sweeney,  48  La.  Ann.  910:  Pnlmer  v.  Palmer.  40  X.   Y.  Supp.  829. 

47  Miller  V.  P.rnwn.  ?,  Mo.  127. 

4«r;r,nnt  v.  ^Moore.  29  Cal.  644.  One  can  not  maintain  an  action 
for  the  malieinns  prosecution  of  either  a  civil  or  eriminal  proceed- 
ing to  which  he  was  not  a  party.    Duncan  v.  Griswokl,  92  Ky.  546. 


891  MALICIOUS    PltOSECUTiOX.  §    1T8? 

the  defendant  has  not  further  prosecuted  said  complaint,  but 
lias  abandoned  the  same. 

V,  That  the  said  charge  and  the  arrest  of  the  plaintiff  tliere- 
under  were  extensively  published  in  several  public  newspapers, 

among  others  the ,  as  the  plaintiff  believes,  through 

the  procurement  of  the  defendant. 

YI.  That  by  means  of  the  premises  the  plaintiff  was  injured 
in  his  person,  and  prevented  from  attending  to  his  business, 

and  paid dollars  costs,  counsel  fees  in  defending 

himself,  and in  obtaining  bail;  and  he  lost  his 

situation  as  servant  of ;  and  many  persons,  whose 

names  are  unknown  to  the  plaintiff',  hearing  of  the  said  arrest, 
refused  to  employ  him,  and  whereby  also  he  has  been  injured 

in  his  good  name  and  reputation,  to  his  damage 

dollars. 

[Demaxd  of  Judgment.] 

§    1787.   For  procuring  plaintiff  to  be  indicted.49 
Form  No.  447. 
[Title.] 
The  plaintiff'  complains,  and  alleges: 

I.  Tbat   on   the    day   of    ,   18..,   at 

,  the  defendant  caused  and    procured    the  said 

plaintiff  to  be  indicted  by  the  grand  jury,  then  and  there  im- 
paneled and  sworn  by  the court,  in  and  for  the 

county  of   ,  to  inquire  of  crimes  within  and  for 

the  said  county  and  prosecuted  and  caused  to  be  prosecuted 
the  said  indictment  against  the  said  plaintiff. 

II.  That  in  so  doing,  the  defendant  acted  maliciously  and 
without  ])robable  cause. 

in.  That  afterwards,  io-vni,  at  the    term  of 

the  said court,  begun  and  held  on  tlie 

day  of 1 8 .  . ,  at  the  courthouse  in 

in  the  said  county  of   tlio  saifl  plaintiff  was  in 

due  manner  and  T>y  (\\^o  course  of  law  acquittorl  of  the  saif1 
premises  in  the  said  indictment  charged  upon  him,  by  a  jury 
of  the  said  county  of whoroupon  it  was  tlien  and 

40  For  tlio  law  on  this  mihleof.  see  1  Sannrl.  22<^:  Pnrcpll  v.  ATao- 
namarn.  0  Fast.  ?,CA:  1  T.  R.  40?,:  .Vnflorson  v.  Riirlmnnn.  WvIl'IU. 
72.^:  :\rniTi9  v.  Scott.  21  AVf-nd.  2H1 ;  ?A  Am.  Dof.  2.''.n:  Williams  v. 
Hunter.  ?,  Hawks,  .^5:  Dennis  v.  Ryan,  C^,  Rarb.  1-1.");  Fvprott  v. 
Henderson.  140  Mass.  80:  4  Ara.  St.  Rep.  284:  Stoddnrd  v.  lUilnn.l, 
?A  S.  0.  342. 


^  1788  FOiJMs  ui'  coMrLAixTs.  89;^ 

thoio  aujudged  by  the  said  court  that,  tlie  said  plaintiff  go 
hoiifo  tiiereof  witJiout  day,  and  the  said  plaintiil  was  then  and 
there  discharged  oi  and  I'roin  the  premises  in  said  indictment 
speeihed,  as  by  the  record  and  i)roceeding  thereof  remaining 
in  said  court  appears. 

IV.  [State  special  damages.] 

[Demand  of  Judgment.] 

§  1788.  The  same  —  for  obtaining  indictment  on  wMch  a 
nolle  prosequi  was  afterwards  entered. 

}-'onii  No.   448. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18..,  at 

,  the  defendant  procured  C.  D.,  then  the  district 

attorney  in  and  for  the  county  of ,  in  this  state, 

to  issue  subpoenas  for  the  purpose  of  compelling  and  procuring 
the  attendance  of  ^vitnesses,  among  others,  one  A.  B.,  at  the 

court  held  on  the  day  last  mentioned,  at , 

in  said  county,  before  the  grand  jury  and  persons  serving  as 

grand  jurors  at  such  term  of  the court,  for  the 

purpose  of  procuring  an  indictment  to  be  found  against  the 
plaintiff,  as  hereinafter  more  fully  stated. 

II.  That  in  so  doing  the  defendant  acted  maliciously  and 
without  probable  cause,  and  intended  thereby  to  injure  the 
plaintiff  in  his  good  name  and  credit,  and  to  bring  him  into 
public  disgrace,  and  to  cause  him  to  be  imprisoned,  and  to 
impoverish  and  injure  him. 

III.  That  the  defendant  at  said  term  of  the court, 

complained  of  the  plaintiff  before  the  grand  jury,  and  falsely 
and  maliciously,  and  ^v^thout  any  reasonable  or  probable  cause 
whatsoever,  charged  the  plaintiff  to  the  grand  jury  with  having 
[state  charge  preferred]. 

TV.  That  said  charge  was  and  is  wholly  false  and  untrue, 
which  the  defendant  then  and  at  all  times  since  well  knew. 

V.  That  defendant  falsely  and  maliciously,  and  without  prob- 
able cause,  procured  the  grand  jur\''  aforesaid  to  find  and  pvo- 

sont  to  the  said   court  an  indictment  against  the 

plaintiff  for  said  alleged   [state  pretended  charge]. 

VT.  That  the  defendant  falsnlv  and  maliciouslv,  and  without 
probable  cause,   procured    a     benrb    warrant,    directed    to   the 

sheriff  or  any  constable  of  the  said  county  of   

for  the  arrest  of  the  plaintiff  upon  the  aforesaid  indictment. 


893  MALICIOUS    PROSECUTION.  §    IT 89 

to  answer  the  cliarges  therein  made  against  him  as  aforesaid, 

to   be  issued  by  the    court  of   said   county   of 

;  and  afterwards,  on  or  about  the day 

of ,  18.  .,  caused  the  plaintiff  to  be  arrested  and 

to  be  kept  in  custody,  restrained  of  his  liberty  for  the  space  of 

months,  and  to  give  bail  in  the  sum  of 

dollars  to  obtain  his  release. 

VII.  That  the  plaintiff  did  appear  at  the  said  term  of  said 

court,  ready  and  willing  to  then  and  there  stand 

trial  upon  the  aforesaid  indictment  against  him,  pursuant  to 
and  as  reqmred  by  said  bond.  Whereupon  the  aforesaid  district 
attorney,  after  consulting  and  advising  with  the  defendant,  and 
at  his  request,  and  by  his  instructions,  did  then  and  there  move 
the  said  court  that  the  ])laintiff  be  discharged  out  of  custody, 
and  be  fully  discharged  and  acquitted  of  the  said  indictment 
and  of  the  supposed  offense  therein  charged  against  him,  and 
be  no  further  prosecuted  thereon;  whereupon  the  said  court, 
having  heard  and  considered  all  that  the  said  defendant  and 
the  people,  by  the  aforesaid  district  attorney,  could  say  or  allege 
against  the  plaintiff  touching  and  concerning  the  said  supposed 
offense,  did  then  and  there  adjudge,  order  and  determine  that 
the  plaintiff  be  discharged  out  of  custody,  and  be  fully  dis- 
charged and  acquitted  of  the  said  indictment,  and  be  not  fnrther 
prosecuted  thereon. 

VIII.  That  the  said  indictment,  complaint,  and  prosecution 
are,  and  each  of  them  is,  wholly  ended  and  determined  in  favor 
of  this  plaintiff. 

IX.  [Special  damage,  if  any.  as  in  other  cases.] 

[Demand  of  Judomhxt.] 

?  1789.  Dismissal.  An  immediate  dismissal  by  a  magistrate 
of  a  prosecution  when  commenced,  is,  it  would  seem,  prima 
facie  proof  of  the  want  of  probable  cause.'^'^  Entr\'  of  nolle 
prosequi  was  held  insufTicient  for  that  ])urposo.'^^ 

MQonUl  v.  Rhermnn.  10  Al.t),  I'r.  m. 

«i  Bnron  v.  Townsend.  2  C.  U.  .'.1:  Hall  v.  Fislier.  20  Barl>.  441; 
RroAvn  v.  Lakenian,  12  Onsh.  (Mass.)  4K2:  0  Mod.  201;  contra.  Yocum 
V.  Polly.  1  R.  Mon.  .^'tS;  .'^0  Am.  Dor.  .'"•S.'?;  and  compare  r.raves  v. 
Dawson.  130  Mass.  78;  39  Am.  Rep.  42f):  Woo<lwoHli  v.  Mills,  (51 
Wis.  44;  50  Am.  Rep.  1.3.'".;  Hell  v.  Matthews.  37  Kaii.  <Wr,. 


v;s;     i.^u,  jL4.yi  I'OKMS    OF    COMl'LAIXTSS.  891: 

§    1790.   The   same  —  where  judgment    of    acquittal   was    ren- 
dered. 

for>n  No.   479. 

[Title.] 
The  plaintiir  complains,  and  alleges: 

I.  That   on   the    day   of    ,    18..,   at 

,  tlie  dei'endajit    caused  and  procured  to  be  sued 

out   of   the    court,   in   and    for   the   county   of 

,  a  certain  writ  of  attachment,  in  a  certain  action 

then  and  there  pending,  wherein  the  said  A.  B.  was  plaintiff, 
and  the  plaintiff  herein  was  defendant,  directed  to  the  sheriff 
of  said  county,  commanding  said  sheriff  [here  state  substance 
of  the  said  writ  J,  and  delivered  the  same  to  the  said  sheriff, 
and  caused  and  required  the  said  sheriff  to  levy  said  writ  of 
attachment  on  the  store  of  goods>  wares,  and  merchandise  of 
the  said  plaintiff,  and  took  the  same  into  his  possession,  and 

the  said  defendant  afterwards  applied  to  the  said 

court  [or  to  Hon.  C.  D.,  judge  of  said  court],  and  obtained  an 
order  from  said  court  [or  judge]  for  the  sale  of  said  goods  and 
merchandise,  and  caused  said  sheriff  to  sell  the  same  at  a  great 
sacrifice. 

II.  That  in  so  doing  the  defendant  acted  maliciously  and 
without  probable  cause,  and  unjustly  contrived  and  intended  to 
injure  the  said  plaintiff  and  break  up  his  business  —  he,  the 
said  plaintiff,  then  being  engaged  in  business  of  a  merchant. 

III.  That  the  said  action  of  the  said  defendant  afterwards 

came  on  for  trial  at  the term  of  said  court,  18 . . , 

and  was  tried,  and  a  verdict  and  judgment  rendered  in  favor 
of  the  said  plaintiff,  to  the  damage  of  the  said  plaintiff 
dollars. 

[Demand  of  Judgment.] 

§  1791.  Acquittal  essential.  An  action  for  malicious  prose- 
cution can  not  be  maintained  until  the  plaintiff  has  been 
acquitted,  or  the  prosecution  is  finally  terminated  in  his  favor. 
The  determination  of  the  prosecuting  officer  never  to  bring  the 
indictment  to  trial,  for  the  reason  that  he  deems  the  charge 
entirely  unsupported,  is  not  sufficient.^^  rp|^g  plaintiff's  ac- 
quittal must  be  allegerl.     Aii  allegation  that  he  has  been  dis- 

•"^aorant  v.  Moore.  29  Cal.  044:  Murphy  v.  Ernst.  40  Neb.  1;  Master- 
son  T.  Brown,  72  Fed.  Rep.  l.SO:  Thomason  v.  Demotte,  9  Abb.  Pr. 
242:  S.  O.,  18  How.  Pr.  .'529:  see  Forster  v.  Orr,  17  Oreg.  447. 


895  MALICIOUS    PROSECUTION.  §    1792 

charged  is  not  sufficients^  It  is  not  enough  to  aver  tliat  the 
prosecuting  officer  declared  the  complaint  frivolous,  and  refused 
to  try  it.S'*  The  rule  that  the  prosecution  must  have  terminated 
favorably  to  the  plaintitt',  does  not  apply  in  case  of  an  attacli- 
ment  against  his  property,  sued  out  in  his  absence,  and  which 
he  had  no  opportunity  to  defend. •"'''  Generally,  a  criminal 
prosecution  may  be  said  to  have  terminated  —  first,  where  there 
is  a  verdict  of  not  guilty;  second,  where  the  grand  jun'  ignores 
a  bill;  thirdy  where  a  nolle  prosequi  is  entered;  and,  fourth, 
where  the  accused  has  been  discharged  from  bail  or  imprison- 
ment.'*® And  in  actions  for  malicious  prosecutions  for  crime 
the  complaint  must  allege  facts  sho^\ing  that  the  criminal 
action  had  terminated.^^  But  it  has  been  held  that  in  an  action 
to  recover  damages  for  the  malicious  abuse  of  process  in  a  civil 
action,  it  is  not  necessary  that  the  complaint  shall  aver  a  judi- 
cial determination  of  the  action  in  which  such  process  issued.^** 

§   1792.   For  malicious  arrest  in  a  civil  action. 

Form   No.   450. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of    18 .  . ,  the 

defendant,  maliciously  intending  to  injure  the  plaintiff,  nuulc 
affidavit,  and  procured  one  A.  B.  to  make  an  affidavit,  in  an 

action  brought  against  this  plaintiff  by in  wiiicli 

he  alleged  [set  forth  the  grounds  of  the  false  aiTcst];  and  that 
u])on  said  affidavits  the  defendant  caused  to  be  issued  an  order 
of  arrest  against  this  plaintiff,  under  which  the  plaintiff  was 

arrested  and  imprisoncil   for  the  space  of    ,  and 

compelled  to  give  bail  in  the  sum  of dollars. 

IT.  That  in  so  doing  the  defendant  acted  nualiciously  and 
without  probable  cause. 

53  Morpnn  v.  Iln^Mies,  2  T.  R.  22.");  Bacon  v.  Towns<Mul.  2  Code!  R. 
51. 

MTlioniason  v.  Demotfo,  n  A1)J>.  Vv.  242. 

I'i  Rump  v.  Retts.  V.)  W.-rid.  421. 

B6  Lowe  V.  ■\Vartiiian.  IT  X.  .F.  I,.  M.''.:  and  seo  roforson  v.  Tonor, 
80  Mifh.  .''..")n:  r>reyfiis  v.  \\\\.  20  XpI).  1!M:  Horn  v.  Sims.  02  Ca.  421. 

f'T  WofKlwortli  v.  Mills.  r,1  "Wis.  44;  ."O  Am.  lU'ii.  I.T1:  Kiiijr  v. 
•Tolinsfon,  SI  Wis.  .'TO:  ('onmioTnvcaltli  v.  M<('liisi<y,  ir'.l  Mass.  4S,S; 
Lawrcn<<'  v.  TIpmit.  ^^  ^Vis.  47.'?. 

r.R  Snopdon  v.  Harris,  100  N.  f.  -"^lO;  and  scf  M;iyi'r  v.  Wallpr,  fVJ 
Penn.  St.  283;  Einery  v.  C.innan.  24  111.  App.  05. 


^§   1 793-1 T9C5  FORMS    OF    COMPLAINTS.  89G 

III.  Tluit  on  the day  of ,  18. .,  said 

order  was  vacated  by  said  court,  upon  the  ground  tliat  [set 
forth  the  grounds  on  which  it  was  vacated]. 

[Or,  III.  That  on  the day  of ,  18.  ., 

such  proceedings  were  had  in  such  action,  tliat  it  wd^  finally 
determined  in  favor  of  this  plaintili',  and  judgment  was  ren- 
dered for  him  therein.] 

IV.  [Special  damage.]  That  many  persons,  whose  names 
are  unknown  to  plaintilf,  hearing  of  the  arrest,  etc.  [as  in  form 
No.  4-16],  to  the  damage  to  the  plaintili' dollars, 

[Demand  of  Judgment.] 

§  1793.  Jurisdiction.  But  if  a  complaint  shows  that  the  ar- 
rest was  without  jurisdiction,  it  may  be  good  as  alleging  a 
trespass,  without  averring  a  determination  in  favor  of  plaintiff.^'** 

§  1794.  Malice.  If  one  person  arrests  another  for  the  com- 
mission of  a  crime,  under  the  belief  that  the  person  arrested 
has  committed  the  crime,  the  person  making  the  arrest  can  not 
be  said  to  act  maliciously,  although  he  may  act  unlawfully.^*' 

§  1795.  Several  causes  of  action  united.  An  action  for  ma- 
licious arrest  and  prosecution,  or  either  of  them,  may  be  united 
with  an  action  for  either  an  injury  to  character  or  to  the  per- 
son,^^  as  for  libel  or  slander.®^ 

§  1796.  When  action  will  lie.  Where  a  complaint  charged 
a  crime,  and  the  prosecution  w^as  instituted  before  a  tribunal 
having  Jurisdiction,  and  a  warrant  regular  upon  its  face  was 
issued,  and  the  defendant  w^as  arrested,  an  action  brought  by 
him  for  malicious  prosecution  will  be  sustained,  although  the 
complaint  was  not  signed  by  the  complainant.^^     An  action  for 

M  Steel  V.  Williams,  18  Ind.  101;  Searll  v.  MeCracken,  16  How. 
Pr.  262;  see  §   1774.   n.,   ante. 

60  Lj'on  V.  Hancock,  3.5  Cal.  372. 

ei  Cal.  Code  Civ.  Pro.,  §  427: 

R2  Watson  v.  Hazzard,  3  Code  P.  218;  Martin  v.  Mattison.  8  Abb. 
Pr.  3;  see  §  1677,  ante. 

C3  Chapman  y.  Dndd.  10  Minn.  3.50.  Where  F.  commence<l  an 
action  ajrainst  O.  for  liavinj;  falsely  and  malifiously,  and  without 
any  reasonal)le  or  probable  rausc  therefor,  procured  a  writ  of  arrest 
to  be  issne<l  in  an  action  brousrht  by  O.  against  F.,  whereby  the 
latter  was  arrested  and  imprisoned,  and  the  proceedings  were  regu- 
lar on  their  face,  the  failure  of  the  complaint  to  show  that  the  writ 


897  MALICIOUS   PEOSECrTION.  §    1797 

malicious  prosecution  will  lie  against  a  creditor  who  effected 
the  arrest  and  imprisonment  of  his  debtor  by  alleging  that  the 
demand  was  greater  in  amount  than  it  truly  was,  so  as  to 
liinder  the  debtor  from  getting  bail.  It  is  true  that  in  order 
to  sustain  an  action  for  malicious  prosecution  the  law  requirevS 
that  the  proceedings  which  form  the  subject  of  complaint  should 
have  been  maliciously  instituted,  and  carri(,'d  on  without  any 
reasonable  or  probable  cause.;  but  there  would  ordinarily  be 
hut  little  difference  in  the  injury  produced  to  the  defendant, 
whether  the  unfounded  prosecution  was  carried  on  without  any 
demand  whatever  to  justify  it,  or  whether  it  was  coupled  with 
a  claim  of  real  merit.^^ 

§  1797.  When  action  will  not  lie.  An  action  in  a  case  for 
malicious  prosecution  will  not  lie  for  causing  a  person  to  be 
arrested  on  a  criminal  warrant,  charging  an  act  which  is  not  a 
crime,  but  merely  a  trespass,  as  the  warrant  was  void,  and  the 
proper  remedy  for  an  arrest  on  such  a  warrant  is  trespass.^' 
Bona  fide  acts  of  a  party  on  advice  given  by  counsel,  after  a 
full  and  fair  statement  of  the  facts,  is  evidence  of  a  probable 
cause,  however  erroneous  the  advice  may  be.^ 

of  arrest  had  been  vacated  or  set.  aside  by  the  oonrt  in  the  action 
In  which  it  was  issne<l  was  held  a  fatal  defect,  and  that  the  com- 
plaint was  insufficient  to  sustain  a  recovei-y  had  thereon.  Forster 
V.  Orr,  17  Oroff.  447. 

w  Phil,  on  Ev.  201:  ."^  Barn.  &  Cross.  l.'^O;  Dronofield  v.  Archer.  7 
Enjr.  Com.  Law,  177;  20  Enjr.  L.  &  Eq.  200;  Sommor  v.  Wilt,  4  Serg. 
&  R.  19;  1.3  id.  .>!:  Brown  v.  Mclntyre.  4.3  Barb.  ?A4. 

«5  Cramer  v.  Lett,  .%0  Penn.  St.  4n.'>;  SS  Am.  Doc.  mC;  but  see 
Dennis  v.  Ilyan,  G3  Barl).  14.");  Newfield  v.  Copperman.  47  How.  Pr. 
87. 

60  Richardson  v.  Virtue.  2  Hun.  20S:  Eastman  v.  Kea.sor,  44  N.  H. 
niR;  SCO  .Jackson  v.  JJnninprton,  47  Kan.  .390;  27  Am.  St.  Rep.  .300; 
Adams  v.  Bicl<noll.  12<;  Ind.  210;  22  Am.  St.  Rep.  570.  The  advico 
of  connsol  is  no  defense  if  the  defendant  did  not  believe  tlio  accused 
to  be  guilty.     Johnson  v.  Miller,  82  Iowa,  093;  31  Am.  St.  Rep.  r)14. 

Vol.  1—113 


CHAPTER  V. 

FOR   PERSONAL    INJURY    CAUSED    BY    NEGLIGENCE. 

§  1798.  For  injuries  caused  by  collision  of  vehicle  driven  by 
servant. 

Form  No.   451. 
[Title.] 
The  plaintiir  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18 .  . ,  the 

plaintiff  was  driving  along  the  public  highway  of  the  city  of 
,  in  a  carriage  drawn  by  one  horse. 

II.  That  the  defendant  was  then  the  owner  of  a  wagon  and 
two  horses,  which  were  then  being  driven  along  said  highway, 
in  the  possession  of  defendant   [or  of  defendant's  servant]. 

III.  That  the  defendant  [or  that  said  servant]  so  carelessly 
drove  and  managed  said  horses  and  wagon,  that  by  reason  of  his 
negligence  said  wagon  struck  the  plaintiff's  carriage  and  over- 
threw the  same,  and  threw  the  plaintiff  out  of  his  carriage  npon 
the  ground   [or  describe  the  accident],  whereby  the  plaintiff 

was  bruised  and  wounded,  and  was  for days  prevented 

from  attending  to  his  business,  and  was  compelled  to  expend 

dollars  for  medical  attendance  and  nursing,  and 

dollars  for  the  repair  of  his  said  carriage,  to  his 

damage  dollars. 

[Demand  of  Judgment.] 

§  1799.  Carrier's  contract.  Passenger  carriers  bind  them- 
selves to  carry  safely  those  whom  they  take  into  their  coaches 
or  cars,  as  far  as  human  care  and  foresight  will  go;  that  is,  for 
the  utmost  care  and  diligence  of  very  cautious  persons.^  The 
words  "  care,  diligence,  and  foresight "  imply  a  relation  to  future 
events.^ 

1  vStori'  on  Bailmonts,  §  601;  and  see  Dodge  v.  Steamship  Co.,  148 
Mass.  207;  12  Am.  St.  Rep.  541;  Treadwell  v.  Whittier.  80  Cal.  .575; 
13  Am.  St.  Rep.  175. 

2Wheaton  v.  N.  B.  &  M.  R.  R.  Co.,  39  Cal.  590;  see  Cal.  Civil  Code, 
§§  2100-2104,  inclusive. 


899  PERSONAL    INJURY,    BY    XEGLIGEXCE.       §§    1800-1802 

§  1800.  Damages.  If  by  the  negligent  driving  of  defendant's 
servant  his  vehicle  runs  into  another  which  is  driven  with  due 
care,  and  causes  the  horses  of  the  latter  to  take  fright  and 
run  away,  and  said  horse  runs  into  the  plaintiff's  vehicle  and 
injures  him  when  he  is  using  due  care,  the  damage  is  not  too 
remote  to  be  recovered.^  In  a  case  of  simple  negligence  in 
which  the  elements  of  fraud,  malice,  or  oppression  do  not  enter, 
only  actual  damages  can  be  recovered.'*  In  actions  of  this 
character,  all  the  circumstances  in  the  case  may  be  taken  into 
consideration  in  making  up  the  estimate  of  damages,  and  the 
jury  are  not  confined  to  the  actual  damages  sustained,  and 
where  the  stage  at  the  time  was  driven  by  the  servant  or  agent, 
the  principal  is  liable  only  for  simple  negligence,  and  exemplary 
damages  can  not  be  imposed.^  The  only  damages  which  can 
be  recovered  in  such  actions  are  such  as  are  commensurate  wdth 
the  injur}'  alleged  to  have  been  sustained,  or  actual  damages.^ 

§  1801.  Defect  of  vehicle.  A  carrier  of  passengers  for  hire 
does  not  w^arrant  that  the  carriage  in  which  the  passenger  travels 
is  roadworthy.  He  is  bound  to  use  all  vigilance  to  insure  safety, 
but  is  not  liable  for  a  defect  which  could  not  lie  detected,  and 
which  arises  from  no  fault  of  the  manufacturer.'^ 

§  1802.  Liability  for  negligence.  If  a  child  under  four  years 
of  age  is  injured  by  the  negligence  of  third  pereons  in  the  street 
of  a  city  traversed  constantly  by  cars  and  other  vehicles,  his 
father  can  not  recover  for  loss  of  service  if  he  has  knowingly 
suffered  such  child  to  be  in  the  street  unattended.^  Otherwise 
of  an  action  by  the  child  itself,  although  the  negligence  of  a 
volunteer  undertaking  to  interfere  for  tlie  child's  benefit  con- 

8  McDonald  v.  Snelling,  06  Mass.  200:  .^^ee  Gonzales  v.  Galveston, 
84  Tex.  3;  31  Am.  St.  Rep.  17. 

4  Moody  v.  McDonald,  4  Cal.  297;  Sedp.  on  Moas.  of  T>am.  20; 
Keenp  v.  Llz.ardi,  R  La.  \0.  S.]  .390;  Mason  v.  Ilawos,  ^^2  Conn.  12;  ri2 
Am.  Hep.  r>r,2;  Hurt  v.  Railroad  Co..  94  Mo.  2.-vr>;  4  Am.  St.  Rep.  374. 

0  The  Amiable  Nancy,  3  Wheat.  rAH;  AVanlrol)e  v.  California  Stajie 
Co.,  7  Cfil.  12f). 

«Greenl.  on  Ev.,  §  2r>3;  WJiittomorc  v.  Cutter,  1  Gall.  478;  Batoraan 
r.  Goodyear.  12  Conn.  .''»«():  Dain  v.  AVycofT.  7  X.  Y.  193. 

7Rpa/lliead  v.  Midland  K.  K.  r.,..  I,  R..  4  Q.  R.  .",79;  S.  C,  2  Q.  B. 
412;  Du  Laurans  v.  St.  Raul,  etc.,  R.  R.  Co.,  1.^)  Minn.  49;  2  Am.  Rep. 
107;  and  soo  Brecn  v.  Rriilroad  Co..  109  N.  Y.  297;  4  Am.  St.  Rep. 
450;  .St.  Louis,  etc.,  R.  I{.  Co.  v.  Vallrius,  .'>(!  Ind.  511. 

« Glassoy  v.  IIestonvilli>  I{.  K.  Co.,  57  Penn.  St.  172;  Westbrook 
r.  Railroad  Co.,  00  Miss.  r,iV):  14  Am.  St.  R(>p.  587. 


§§  1803,  I80i      FORMS  OF  COMPLAINTS.  900 

thbuU'il  to  llio  iiijun-."'  One  who  sells  gunpowder  to  a  child 
eight  years  old,  knowing  that  lie  is  unlit  to  be  trusted  with  it, 
is  liable  if  the  eliild.  usin-g  the  care  of  which  he  is  capable, 
explodes  iu  and  is  burned  by  the  same,  and  a  license  to  sell 
gunpowder  is  no  dei'euse.^'^ 

§  1803.  Master  and  servant  —  general  doctrine.  The  general 
doctrine  is  maintained  that  the  master  or  employer  is  respon- 
sible for  the  act  or  omission  of  the  servant  or  employee  within 
the  scope  of  his  employment  or  authority.^^  One  whose  servant 
negligently  throws  a  keg  out  of  a  window,  and  injures  a  person 
passing  through  a  passageway  below,  is  liable,  although  such 
person  was  there  only  by  license. ^^  But  the  employer  is  not 
responsible  for  a  willful  injury  committed  by  an  employee  not 
withiii  the  scope  of  his  employment. ^^  For  injury  by  negli- 
gence, both  employer  and  employee  may  be  sued  together.^'* 
A  municipal  corporation  is  not  liable  for  negligence  of  members 
of  its  paid  tire  department.^^ 

§  1804.  Against  common  carriers  —  for  injuries  caused  by 
overturning  stage-coach. 

Form  No.   452. 
[Title.] 
The  plaintiff  complains,  and  alleges: 
I.  That  on  the    day  of    ,   18.  .,  the 

9  North  Peun.  R.  R.  Co.  v.  Mahoney,  .57  Penn.  St.  187;  Railway 
Co.  V.  Edrlie,  4.3  Ohio  St.  01;  J5-t  Am.  Rep.  803;  Winters  v.  Railroad 
Co.,  99  Mo.  509;  17  Am.  St.  Rep.  591;  Huff  v.  Ames,  16  Neb.  139;  49 
Am.  Rep.  716. 

10  Carter  v.  Towne,  98  Mass.  567;  96  Am.  Dec.  682. 

11  New  York  &  N.  H.  R.  R.  C^.  v.  Schuyler,  34  N.  Y.  30;  Chapman 
V.  New  York  Cent.  R.  R,  Co.,  33  id.  369;  88  Am.  Dec.  392;  Drew  v. 
Sixth  Avenue  R.  R.  Co.,  26  N.  Y.  49;  Lannen  v.  Albany  Gas  IJ^ht 
Co.,  46  Barb.  264;  Carman  v.  Mayor  of  New  York,  14  Abb.  Pr.  301; 
Annett  v.  Foster,  1  Daly,  502;  Meyer  v.  Second  Avenue  R.  R.  Co., 
8  Bosw.  305;  Merrick  v.  Brainard,  38  Barb.  !>74.  Not  affected  by 
partial  reversal.  INIerrick  v.  Van  Santvoord,  34  N.  Y.  208;  Railroad 
Co.  V.  Anderson,  82  Tex.  .516;  27  Am.  St.  Rep.  902;  Palmeri  v.  Rail- 
way Co.,  133  N.  Y.  2<n;  28  Am.  St.  Rep.  632;  p]vans  v.  Davidson, 
.53  Md.  245;  .36  Am.  Rej).  400. 

i2Corrigan  v.  Union  Sugar  Refinery,  08  Mass.  .577;  06  Am.  Dec. 
685. 

13  Garvey  v.  Dung,  30  How.  Pi-.  315;  Stephenson  v.  South.  Pac. 
Co.,  93  Cal.  5.5,8;  27  Am.  St.  Rep.  223;  Mott  v.  Ice  Co.,  73  N.  Y.  543. 

14  Phelps  v.  Wait,  ,30  N.  Y.  78. 

15  Howard  v.  San  Francisco,  51  Cal.  52. 


901  PEKSONAL  IXJUEY,  BY  NEGLIGENCE.       §  1805 

defendant  was  a  common  carrier  of  passengers  for  hire  by  stage- 
coach between and 

II.  Tliat  on  that  day,  as  sucli  carrier,  he  received  the  plaintiff 

upon  his  coach,  to  be  carried  from to , 

for  the  sum  of dollars,  which  was  then  and  there 

paid  by  the  phiintiff  to  the  defendant. 

III.  That  while  he  was  such  passenger  at [or 

near ,  or  between and J, 

the  said  coach  was,  by  and  through  the  carelessness  ajid  negli- 
gence of  the  said  defendant,  overturned  and  thrown  down,  with 
the  plaintiff  therein,  as  aforesaid,  by  means  whereof  the  said 
plaintiff'  was  greatly  injured,  and  one  of  the  legs  of  said  plaintiff 
was  broken,  and  fractured,  and  bruised,  and  the  said  plaintiff' 
was  otherwise  greatly  injured,  wounded,  and  cut,  insomuch  that 
the  said  plaintiff  then  became  sick,  lame,  and  sore,  and  so  con- 
tinued for  the  space  of months  thence  next  ensu- 
ing, and  was  during  all  that  time  prevented  from  attending  to 
his  business  and  carrying  on  the  same;  and  the  said  plaintiff 

was  forced  to  expend,  and  did  expend,  the  sum  of 

dollars  for  medical  attendance  and  nursing,  to  his  damage 
dollars. 

[Demand  of  Judgment.] 

§  1805.  Essential  averments.  It  is  only  necessory  to  prove 
the  overturn  and  the  injuries  sustained.  The  presumption  of 
law  is,  that  the  overturn  occurred  through  the  negligence  of 
the  defendant.^''  In  an  action  on  the  case  for  an  injury  sus- 
tained by  tlie  upsetting  of  a  stage-coach,  the  declaration  alleged 
that  the  plaintiff,  at  the  special  instance  and  request  of  the 
defendant'*,  became  a  passenger  in  a  certain  coach,  to  be  carried 
safely,  and  for  certain  rewards  to  the  defendants;  and  tliat 
tberoupo-n  it  was  their  duty  to  use  due  and  proper  care  that  the 
plaintiff  should  be  safely  conveyed.  Tbo  breach  was  well  as- 
signed, showing  the  neglect  and  consequent  injur}'  sustained; 
and  it  was  held  that  the  defect,  if  any,  was  cured  by  sociion  33 
of  the  Judiciary  Act.  wliicli  prf)vides  that  no  litigant  shall  lose 
his  right  in  law  for  want  f)f  fonu.''  In  an  action  for  an  injury 
su.'stainod  by  the  upsetting  of  defendant's  stage-coach,  the  plain- 
in  T'.oveo  V.  California  Stapro  Co..  2.".  Tal.  400. 

1"  Rtoel<ton  v.  HiRliop,  4  llow.  (U.  S.)  155;  see,  also,   Washiaprton 
V.  Ogden,  1  Blark,  4.''.0. 


^b 


i80(i-1810  FORMS    OF    COMPLAINTS.  903 


till  allc'Vil  iliat  he  paid  for  his  itassagc  Iho  sum  of  ten  dollarsi 
this  \va:=  hold  to  he  a  inateriai  allegation.*** 

§  1806.  Overturning  plaintiff's  carriage.  In  a  case  for  per- 
sonal injuries  eaused  Uy  plaint itVs  horse  being  frightened  by 
two  loud,  suilden,  and  sharp  whistles  from  defendant's  engine, 
and  upsetting  his  carriage,  it  was  held  that  whether  or  not  the 
above  was  a  proper  signal  in  the  nse  of  ordinary  care  was  for 
the  jury.     A  verdict  for  the  plaintiff  was  upkeid.*" 

§  1807.  Paid  fare.  C'arriers  can  not  protect  themselves  from 
liability  for  gross  negligence,  by  contract.^  It  is  otherwise 
when  the  passenger  is  carried  free.^^ 

§  1808.  Kailroad  company.  An  action  lies  against  a  city  rail- 
road company  for 'the  negligence  of  their  driver  in  respect  to 
stopping  the  car  and  assisting  yonng  and  infinn  persons  on 


22 


§  1809.  Stock  running  at  large.  Plaintiff  was  driving  in  the 
highway,  using  due  care,  when  defendant's  hog  ninning  at  large, 
contrary  to  the  statute,  frightened  plaintiff's  horse,  and  his 
minor  daughter  was  injured  in  consequence;  it  was  held  that 
defendant  was  liable,  altlrough  he  did  not  know  that  the  hog 
was  at  large. ^ 

I  1810.  Who  liable.  Where  one  owning  a  carriage  hires 
horses  and  a  driver  of  B..  for  an  injury  resulting  from  the 
carelessness  of  the  driver  B.  alone  is  liable."^  A  municipal 
corporation  is  liable  for  injuries  ensuing  from  neglect  of  its 
employees  or  officers.^^    The  fact  that  the  driver  of  the  carriage 

18  Harris  v.  Rayner.  S  Pick.  .541. 

18  Hill  V.  Portland  li.  R.  Co.,  ryry  Me.  438;  92  Am.  'Dec.  601. 

20  Illinois  Cent.  R.  li.  Co.  v.  Adams,  42  111.  474;  92  Am.  D-ec.  85; 
see  Adams  Express  Co.  v.  Haynes,  42  111.  89.  93. 

21  Kinney  v.  Cent.  R.  R.  Co.,  32  N.  .T.  L.  407;  90  Am.  Doc.  G7.5;  but 
see  Penn.  R.  R.  Co.  v.  Biitler,  57  Peini.  St.  335. 

22  Drew  V.  Sixth  Avenuo  R.  R.  Co.,  3  Keyos,  420:  and  see  AiKlerson 
V.  Railway  Co.,  42  Minn.  490;  18  Am.  St,  Rep.  525;  Birmanshaiii. 
etc..  Railway  Co.  v.  Smith.  90  Ala.  ('/);  24  Am.  St.  Rep.  701 

2.s.Tewett  V.  Gajje,  .55  Me,  .5.38;  92  Am.  Der.  61,5. 

24Quarman  v.  Burnett.  6  M.  &  W.  497;  Rapson  v.  Cuhitt.  9  id.  709; 
Hobbitt  V.  N.  W.  R.  R.  Co.,  4  Welsh.,  Hurlst.  &  r.onl.  2.54:  Allen  v. 
IT.nywnrd.  7  Adol.  &  Ellis  (N.  S.),  960: 

z.'i  Lloyd  V.  Mayor  of  New  York.  5  \.  Y.  .369;  .55  Am.  Deo.  347; 
cnntra,  Howard  v.  San  Francisco,  51  Cal.  52;  compare  Orlando  v. 


903  PEESOXAL  IXJUEY,  BY  NEGLIGENCE.       §  1811 

and  horses  was  their  owner  was  conclusive  in  establishing  that 
the  relation  of  master  and  ser^^ant  did  not  exist;  and  so  far  as 
the  defendant's  liability  rested  upon  the  existence  of  such  rela- 
tion he  was  not  responsible  for  the  injury  wlrich  the  plaintitf 
received  through  the  negligence  (^f  the  driver.^ 

§    1811.    Against  a  railroad  for   injuries  by  collision. 

Form   Xo.   453. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18. .,  the 

defendant  was  a  corporation  duly  incorporated  under  the  laws 
of  this  state,  and  was  the  owner  of  a  certain  railroad,  known 

as  the railroad,  together  with  the  track,  rolling 

stock,  and  other  appurtenances  thereto  belonging;  and  was  a 
common  carrier  of  passengers  thereupon  for  liire,  between 
and ,  in  the  state  of 

II.  That  on  that  day  the  defendant,  in  consideration  of  the 

sum  of dollars,  then  paid  to  it  by  the  plaintiff 

therefor,   undertook  and   agreed,   as  such  common  carrier,  to 

transport  and  convey  the  plaintiff'  from to , 

as  a  passenger,  and  the  plaintiff  thereupon  entered  one  of  the 
cars  of  the  defendant  to  be  so  conveyed  as  aforesaid  from 
to aforesaid. 

ITT.  That  while  he  was  such  passenger,  at [or 

near  the  station  of  or  between  the  stations  of 

and I ,  a  collision  occurred  on  the 

said  railroad  caused  by  the  negligence  of  the  defendant  and 
its  servants,  whereby  the  plaintiff'  was  much  injured  [state  the 
injury  according  to  fact,  and  the  special  damage,  if  aiiyj. 

[Or,  TIT.  That  the  defendant  and  his  servants,  in  managing 
said  cars  in  which  plaintiff  was  a  passenger,  wore  po  careless 
and  negligent  that  it  was  un,«afe  for  liini  to  remain  in  one  of 
them:  and  that  in  order  to  free  himself  from  the  danger,  he 
was  obliged  to  leap  from  the  car.  and  in  doing  sn  was  injured  ] 
[state  injur\'  according  to  the  fact.] 

TY.  By  means  whereof  the  plaintifT  bntli  1teen  damaged  in 
the  sum  of dollnrs. 

[DkMVXD    or    JlDCMEXT.] 

Pracff.  31  Fla.  Ill:  :'.4   .\in.   St.   Hep.   17;   r.-iRpary   v.   Portland.   10 
Orep.  r)00:  20  .\ni.  St.  \l*-\).  S}2:  Donvi-r  v.  Di-an,  10  Col.  STH;  3  Am. 
St.  Rep.  ."04. 
ae Boniface  v.  Relyea.  .^  .Xbb.  Vv.  (N.  S.)  2.'".9. 


§g    l^l-v^-lSl-O  I'OUMS    OF    COMl"LAlM:i.  90-i 

§  1812.  Degrees  of  negligence.  Degrees  of  negligence  are 
matters  of  proof  antl  not  of  averment;  and  a  general  allegation 
of  negligenee,  want  of  eare  and  skill,  etc.,  is  sufficient  m  an 
action  for  injuries  caused  by  such  negligence,  whether  the  de- 
fendant is  liable  for  ordinary  or  gross  negligeuce.^^  And  an 
averment  of  malice  docs  not  vitiate  the  pleading.-** 

§  1813.  Diligence.  The  same  diligence  is  not  required  from 
a  railroad  company  towards;  a  stranger  as  towards  a  passengej'. 
The  care  required  is  that  which  experience  has  found  reason- 
able and  necessary  to  prevent  injury  to  others  in  like  cases.^" 
A  railroad  company  is  not  liable  for  injuries  received  by  a  pas- 
senger while  voluntarily  and  unnecessarily  standing  on.  the 
platform  of  a  car  in  motion,  although  by  the  express  permission 
of  the  conductor  and  brakeman.'"**^ 

§  1814-  General  averment  of  negligence.  Ordinarily  a  general 
averment  of  negligence  is  sufficient  to  admit  proof  of  the  special 
circumstances  constituting  it.  Thus,  in  an  action  against  a 
railroad  company  for  running  over  a  child,  evidence  is  admis- 
sible under  such  a  general  averment  that  there  were  no  suitable 
brakes  or  guards  in  front  of  the  car  wdiere  the  driver  was 
stationed.^^ 

§  1815.  Negligence  generally,  and  also  specific  acts.  Under 
a  complaint  alleging'  negligence  generally,  and  also  specifying 
particular  acts  of  negligence,  evidence  of  any  other  kinds  of 
negligence  is  admissible;  the  general  allegation  being  sufficient, 
the  particular  charges,  being  surplusage,  should  not  affect  the 
reception  of  evidence.^^  Negligence  is  a  question  of  fact,  or  of 
mixed  law  and  fact;  and  in  pleading  it  is  only  necessary  to 
aver  negligence  generally,  not  the  specific  facts  constituting  the 
negligence.^^ 

27  Nolton  V.  Western  R.  R.  Co.,  1,5  N.  Y.  444;  (59  Am.  Dec.  62.S. 

28AVinterson  v.  Eighth  Aveniio  R.  R.  Cb.,  2  Hilt.  389;  Robinson  v. 
Wheeler,  2,">  N.  Y.  2.")2. 

20  Baltimore  &  Ohio  R.  R.  Co.  v.  Broinig,  25  Mel.  .S7S;  90  Am.  Dec. 
49;  see  Philadelphia,  W.  &  B.  R.  R.  Co.  v.  Kerr.  2."  Md.  .521. 

30  Hiekey  v.  Boston  &  L.  R.  R.  Co.,  90  Mass.  429. 

31  Oldfield  V.  New  York  &  Harlem  R.  R.  Co.,  14  N.  Y.  .^.10. 
32E(lfrorton   v.    Now    York    &    Harlem    R.    R.    Co.,    .35    Barli.    .389; 

affirmed.  39  N.  Y.  227;  Cnnninffham  v.  Railroad  Co..  4  Ufnh,  20n. 

33  MeCanley  v.  Davidson.  10  Minn.  41R.  As  a  rnle,  neslisenee  may 
be  pleaded  irenerally.  It  is  an  ultimate  faft  and  not  a  conclusion 
of  law.    ISIcGonigle  v.  Kane.  20  Col.  292;  House  v.  Meyer,  100  Cal. 


905  PERSONAL    INJUKY,    BY    NEGLIGENCE.       §§    1816-1818 

§  1816.  Particular  facts.  The  complaint  in  an  action  against 
a  railroad  company,  for  running  over  a  pei-son  with  an  engine, 
need  not  show  the  particular  facts  constituting  negligence  on 
the  part  of  the  defendant,  if  it  charges  such  negligence  in  a 
general  way.  Such  complaint  must  show  that  there  was  no 
fault  on  the  part  of  the  person  run  over.^'* 

§  1817.  Several  acts  of  negligence.  If  the  plaintiff  would 
rely  on  several  acts  of  negligence  as  the  cause  of  one  injury, 
he  may  allege  all  the  acts  of  negligence  in  one  count,  and  aver 
that  they  were  the  cause;  and  if  he  prove  upon  the  trial  that 
any  one  of  them  was  the  cause,  his  complaint  is  sustained.^' 

§  1818.  Sufficient  averment  of  negligence.  ]n  an  action 
against  a  railroad  company  for  injuries  eaus'ed  by  a  collision 
with  its  cars,  a  complaint  which  alleges  tliat  tlie  defendant, 
with  carelessness  and  with  gross  negligence,  caused  one  of  its 
engines  to  run  upon  the  track,  etc.,  sufficiently  charges  neg- 
ligence.^^ 

592.  But  it  is  lield  hy  the  Oregon  court  tliat  a  general  allegation 
of  negligence  does  not  charge  any  fact.  Woodward  v.  Navigation 
Co.,  18  Oreg.  289;  McPherson  v.  Paeifle  Bridge  Ck>.,  20  id.  486.  And 
altliough  negligence  may  be  charged  in  general  terms,  yet  it  must 
appear  from  the  facts  averred  that  the  negligence  causeil  or  con- 
tributed to  the  injury,  and  it  is  not  sufficient  merely  to  aver  that 
Ihe  injury  was  caused  by  reason  of  the  negligence  aveired,  if  no 
fact  is  stated  whicli  sliows  how  the  injury  was  caused.  Smitli  v. 
Buttner.  90  Cal.  9.5.  It  is  sufficient  if  tlie  acts  wlilch  caused  the 
Injury  are  alleged  to  liave  been  negligently  or  carelessly  done,  with- 
out; stating  the  specitic  facts  constituting  the  negligenee.  Board  of 
Comm'rs  v.  IIufTman,  134  Ind.  1;  Walsh  v.  Railroad  Co.,  .'54  Fla. 
1;  Wills  V.  Railroad  Co.,  4-4  Mo.  App.  .51:  .Jackman  v.  T.ord,  50  Hun, 
172:  Conley  v.  Railroad  Co.,  109  N.  C.  092;  Parker  v.  {Steamship  Co.. 
17  R.  I.  37(>;  .33  Am.  eit.  Rep.  8(!9;  Poling  v.  Railrojid  Co.,  38  W.  Va. 
f>45:  Gulf,  etc.,  R.  R.  Co.  v.  Washington,  49  Fed.  Rep.  :U7;  see  §  .327, 
ante.  The  i)artieular  act  alleged  to  have  been  negligently  done  must 
be  specified.     Stephenson  v.  South.  I'ae.  Co.,  102  C:il.  1  13. 

34  IndianaiHilis,  ele.,  R.  R.  Co.  v.  Keeley's  .Vdm'r.  'JJ!  lud.  1.33;  St. 
Louis,  ete.,  R.  W.  Co.  v.  Matliias.  .5<1  id.  05. 

s"' Diekens  v.  New  York  Cent.  R.  K.  ('<•..  i:',  How.  Pr.  UL'S;  Louis- 
ville, ete.,  R.   R.  Co.  V.  Mothershed,  97   .\l;i.  2<;i. 

30  Ohio,  etc..  R.  R.  Co.  v.  Davis.  2:;  hid.  .5.5.'.:  s.",  .\iii.  Dec.  177:  :ind 
see  Denver,  ete..  i;.  R.  Co.  v.  R()l)liins.  1'  ("mI.  .\pp.  .".13;  Liivls  v. 
Itailroad  Co.,  .51  Ml.  .\pp.  f',;;i;.  p.nt  it  is  lidd  to  In-  .aii  established 
rule,  that  if  the  idaiutiff  sjiecific.'illy  plead  the  act  or  acts  coiistittiting 
the  defendant's  negligence,   he  can   not  prove  other  and  different 

114 


§§    1819,  1820  FOIiMS   OF   COMPLAINTS.  906 

§  1819.  "Without  the  bounds  of  the  state.  An  action  can 
not  be  uiaintained  under  the  statute  for  a  wrongful  act  causing 
death,  wliere  such  act  occurred  without  the  bounds  of  the  state.^'' 

§   1820.   The  same  —  by  car  running'  off  track. 

I'orm  No.   4^4. 

[Title.  J 
The  phiintiif  complains,  and  alleges: 

I.  [ISanie  as  in  preceding  form. J 

II.  That  on  that  day  tlie  defendant  received  the  plaintiff  as 
a  passenger  in  one  of  the  caiTiages  of  the  defendant  on  said 
road,  to  be  transported  from to 

III.  That  while  he  was  such  passenger,  at ,  tlie 

said  defendant,  not  regarding  its  duty  in  that  behalf,  did,  by  its 
servants  and  agents,  so  carelessly,  negligently,  and  unskillfully, 
conduct  the  running  of  said  cars  and  railroad,  that,  on  the  day 
and  year  aforesaid,  by  the  carelessness,  negligence,  and  default 
of  its  said  agents  and  servants,  and  for  want  of  due  care  and 
attention  to  its  duty  in  that  behalf,  the  said  car  was.  run  off 
the  track  of  said  railroad,  and  thrown  down  the  embankment 
thereof,  whereby  the  said  plaintiff  was  greatly  cut,  bruised  and 
wounded,  so  that  he,  the  said  plaintiff,  became  and  was  sick, 
lame,  and  unable  to  walk,  and  was  wholly  unable  to  attend  to 
the  transaction  and  performance  of  his  usual  and  necessary 
business,  and  so  continued  from  thence  hitherto;  and  said  plain- 
tiff has  been  put  to  great  expense,  to-wit,  to  the  amount  of 

dollars  in  endeavoring  to  cure  his  said  wounds, 

bruises,  and  fractures,  to  his  damage  dollars. 

[Demand  of  Judgment.] 

act  or  acts  for  the  purpose  of  substantiating  his  complaint.  Batter- 
son  V.  Railway  Co.,  49  Mich.  184;  Cherokee,  etc.,  Mining  Co.,  47 
Kan.  400.  Thus  where  the  plaintiff  allegesi  that  the  personal  in- 
juries for  which  he  seeks  to  recover  were  caused  by  a  defective 
pile  driver,  he  can  not  recover  for  injuries  received  on  account  of  an 
unmanageable  team  of  horses  used  in  operating  it.  Santa  Pe,  etc., 
Railway  Co.  v.  Hurley  (Arizona),  36  Pac.  Rep.  217.  And  where  it 
was  alleged  that  the  defendant's  omission  toi  give  any  signal  of 
an  approaching  engine  was  the  cause  of  the  plaintiff's  injuries,  no 
recovery  can  be  had  on  the  ground  that  the  wliistle  was  sounded, 
frightening  the  plaintiff's  horse.  Barron  v.  Railroad  Co.,  89  Wis.  79. 
37  Mahler  v.  Norwich  &  New  York  Transportation  Co.,  45  Barb. 
226;  compare  Leonard  v.  Railroad  Co..  84  N.  Y.  48;  S8  Am.  Rep.  491; 
Kniglit  V.  Railroad  Co.,  108  Penn.  vSt.  2r»0;  r>C>  Am.  Rep.  200;  Vawter 
V.  Railroad  Co.,  84  Mo.  679;  54  Am.  Rep.  105. 


907  PEESONAL    INJURY,    BY    NEGLIGENCE.       §§    18;il,  18^:3, 

§  1821.  The  same  — by  negligently  starting  cars  without 
g^iving  passenger    opportunity  to  get  off. 

Form  No.   455. 

[Title.] 

The  plaintiff  complains,  and  alleges: 
I,  11.   [Same  as  in  form  No.  -153.] 

III.  That  while  plaintitf    was  such  passenger,  and  at  the 

station  of  said  railroad,  when  in  the  act  of  getting 

out  of  and  off  from  said  car  and  being  still  thereon,  to-wit,  on 
the  platform  thereof,  the  said  car  was,  through  the  neglect  of 
the  servant  of  said  defendant,  suddenly  started  and  put  in. 
motion,  without  allowing  said  plaintiff  sufficient  time  to  safely 
get  off,  and  in  consequence  thereof,  and  in  consequence  of  the 
defect  and  insufficiency  of  said  company's  said  platform,  and 
of  the  couplings  connecting  said  car  with  the  other  cars  of  the 
same  train,  and  of  the  defective  and  insufficient  guards  around 
said  platform,  and  across  the  passageway  leading  therefrom  to 
the  next  adjacent  car,  and  in  further  consequence  of  the  in- 
sufficient and  imperfect  means  provided  for  giving  the  alarm, 
preparatory  to  starting  said  train,  and  of  the  negligence  and 
carelessness  of  the  servants  of  said  defendant,  in  the  runnino- 
and  conducting  of  said  train,  the  said  plaintiil'  was  violently 
thrown  on  the  track  between  the  cars  of  said  defendant,  and 
sustained  great  injury-,  to-wit,  one  of  his  feet  was  crushed  by 
a  wheel  of  one  of  said  cars  passing  over  it,  so  that  its  immediate 
amputation  became  necessary,  and  it  was  accordingly  amputated. 

IV.  That  in  the  act  of  getting  off  from  said  car,  as  aforesaid, 
the  plaintiff  exercised  and  observed  all  due  and  proper  care  and 
precaution. 

"V.   [Allegation  of  any  special  damages.] 
[Demand  of  Judgment.] 

{    1822.    For   injuries   caused   by   negligence  on   a   railroad,   in 
omitting  to  give  signal. 

Form  No.   456. 
rTiTr.K.] 
The  7)laititin'  complains,  and   alleges: 

T.  That   on    the    day   of    IS...    the 

defendant  was  a  corporation  duly  incorporated  under  and  pur- 
suant to  the  laws  of  this  state,  and  was  ilio  owner  of  a  ecrfain 

railroad,   known    as    railroad,    loiri'lbcr   witli    ilic 

track,  rolling  stock,  and  oilier  appnrfenances  lliereto  l)elonging. 
TT.  That  on  that  day  the  plainfifT  was  traveling  in  a  carriage 


§    18v'3  I'OKMtJ    OF    COMl'LAINTS.  908 

along  tlio  public  highway,  from to , 

which     public     higliway    crosses    the     railroad    aforesaid,    at 

,  and  as  theplaintill  had  reached  said  crossing, 

the  defendants  carelessly  and  negligently  caused  one  of  their 
locomotives  [with  a  train  of  cars  attached  thereto]  to  approach 
said  crossing,  and  then  and  there  to  pass  rapidly  over  the  track 
of  said  railroad,  and  negligently  and  carelessly  omitted  their 
duty  while  approaching  said  crossing,  to  give  any  signal  by 
ringing  the  bell  or  sounding  the  steam-whistle,  by  reason 
whereof  the  plaintiff  was  unaware  of  their  approach. 

III.  That  in  consequence  thereof,  the  locomotive  struck  the 
plaintiffs  horse,  and  overset  the  plaintiff's  carriage,  and  plain- 
tiff was  thrown  out  upon  the  ground  with  such  force  as  to 
fracture  his  left  arm   [or  other  injuries]. 

IV.  That  thereby  the  plaintiff  was  put  to  great  pain,  and 
was  and  still  is  prevented  from  going  on  with  his  business  as 

,  and  is,  as  he  believes,  permanently  injured,  and 

was  otherwise  greatly  injured,  and  was  compelled  to   expend 

dollars  for  medical  attendance  and  nursing,  to 

his  damage dollars. 

[Demand  of  Judgment.] 

8  1823.  Omission  of  duty.  The  facts  which  are  relied  on  as 
raising  a  duty  must  be  alleged  where  the  negligence  consists  in 
the  omission  of  a  duty.^*  An  existing  duty  or  obligation  is 
an  essential  and  necessary  prerequisite  or  predicate  of  an  aflflrma- 
tion  of  neglect  or  failure  to  perform.^^  Neglect  to  ring  the  bell 
for  the  entire  distance  required  by  law  does  not  necessarily 
make  the  company  liable,  if  the  bell  was  rung  or  whistle  sounded 
for  such  a  distance  from  the  crossing  as  to  give  the  deceased 
timely  and  sufficient  warning  of  the  approaching  train  to  pre- 
vent him  from  trying  to  cross  the  track.*'' 

38  City  of  Buffalo  v.  Hollo  way,  7  N.  Y.  49.3;  57  Am.  Dec.  .550;  afflrm- 
inp:  S.  C,  14  Barb.  101:  Taylor  v.  Atlantic  Mutual  Insuranco  Co..  2 
Bosw.  lOfi;  Conpreve  v.  Morgan,  4  Duer,  4.30;  Seymour  v.  Maddox, 
16  Q.  B.  .320;  S.  C.  71  Eng.  Com.  r>.  ,320;  and  seo  INIoCinity  v.  Mayor, 
etc..  5  Duor,  074;  Bof-kford  City  R.  R.  Co.  v.  Matthews.  .50  111.  App. 
207:  Funk  v.  Biper.  .50  id.  103:  Falk  v.  Railroad  Co..  .50  N.  .T.  L.  .380. 

■^f>  Eustaoo  V.  .Talins,  3.S  Cal.  3;  O'Brien  v.  Capwell,  .59  Barb.  497. 

4"^  Cr  ok  y.  New  Yorl<  Cont.  R.  R.  Co.,  5  Lans.  401 ;  but  see  Robin- 
son V.  W.  P.  R.  R.  Co..  48  Cal.  410.  Duty  of  rnilway  company  to 
give  proper  signals  at  crossings.  <^ep  Murray  v.  Railroad  Co.,  101 
Mo.  230:  20  Am.  St.  Rep.  001;  C'licago,  etc..  R.  R.  Co.  v.  Dillon, 
123  III.  570;  5  Am.  St.  Rep.  .559. 


909  PERSONAL    INJURY,    BY    NEGLIGENCE.       §§    1821-1826 

I   1824.   By  steamboat  explosion. 

Form  No.  45/. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  hereinafter  mentioned,  the  defendants 

were  common  carriers  of  passengers  for  hire,  between 

and ,  and  were  the  proprietors  of  a  steamboat,  named 

the ,  employed  by  them  in  carrying  passengers  and 

merchandise  on  the river,  I'roni to 

,  for  hire. 

II.  That  on  the   day  of   ,  18 .  . ,  the 

defendants  received  the  plaintiff  and   his  wife  and  daughter 
into  said  boat  for  the  purpose  of  safely  conveying  them  therein 

as  passengers,  from to ,  for 

dollars,  paid  to  them  by  the  plaintiff  therefor. 

III.  That  the  defendants  so  negligently  and  unskill fully  con- 
ducted themselves,  and  so  misbehaved  in  the  management  of 
said  boat,  that,  through  the  negligence  and  unskillfulness  of 
themselves  and  their  servants,  the  steam  escaped  from  the  boiler 
and  engine,  and  burned  or  scalded  [otherwise  state  injury, 
according  to  the  facts],  the  plaintilf  and  his  wdfe  and  daughter. 

IV.  That  in  consequence  thereof,  the  plaintiff  and  his  said 
wife  and  daughter  became,  and  for  a  long  time  remained  ill; 
the  plaintiff  was  deprived,  and  for  a  long  time  to  come  will 
be  deprived    of    the  assistance  and  services  of    his  wife  and 

daughter,  and  was  compelled  to,  and  did  expend 

dollars  in  attempting  to  cure  himself  and  his  wife  and  daughter, 

and  was  for    months  prevented  from  pursuing 

his  business,  and  was  othenvise  greatly  injured,  to  his  damage 
dollars. 

[Demand  of  Ji-doment.] 

§  1825.  Condition  of  boiler.  Tbe  certificate  of  an  inspector 
does  not  discharge  tlic  lial)ili1y  of  tbe  owner  of  a  Imiler  to  the 
party  injnrcfl  by  its  bursting.''^ 

$  1826.  Master  and  servant.  The  owner  of  wat^r-craft  is  not 
liablf  for  tbf  iiijniT  willfully  committod  by  the  master  or  pilot 
running  her.'*" 

<i  Rwnrtliout  v.  New  JfTBoy  Stpainlw>at  Po.,    JC.  Ilarb.  222. 
<2  Turnpike  Co.  v.  Van<l<Thilt,  1   I  fill,  480. 


ij§  l^•,l;-lb3i  roiiiis  of  (jomi'laints.  910 

6  1827.  Negligent  delay.  A  trausporUtiou  company  is  liable 
to  a  passenger  ior  injury  occasioned  by  negligent  delay .'^^ 

§  1828.  Negligence  in  navigating  water-craft.  The  plaintiff 
III  ail  aeUun  ior  danuigcs  lor  injuries  caused  by  negligence  in. 
sailing  water-cralt,  must  sliow  tliat  lie  used  ordinary  care.'** 

§  1829.  Rule  of  damages.  Where  the  collision  occurs  with- 
out, negligence  of  either  party ;,  each  must  bear  his  own  loss.*^ 

§  1830.  Rules  of  navigation.  Ste<im  vessels  are  bound  to 
keep  clear  of  sailing  vessels;  they  are  treated  as  having  wind 
in  their  favor.'*" 

§  1831.  For  injuries  to  engineer  of  a  railroad  company, 
caused  by  a  collision. 

Form  No.  458. 
[Title.] 

The  phiintiff  complains,  and  alleges: 

I.  That  on  the   day  of    ,   18 .  . ,  the 

defendant  was  a  corporation,  duly  incorporated  under  and  pur- 
suant to  the  laws  of  the  state  of  California,  and  was  owner  of 

a  certain  railroad  known  as    railroad,  together 

with  the  track,  cars,  and  locomotives  thereto  belonging. 

43  Van  Buskirk  v.  Roberts,  31  N.  Y.  661. 

44  Barnes  v.  Cole.  21  Wend.  188;  Holderman  v.  Beekwith,  4  Mc- 
Lean, 286;  Rathbun  v.  Payne,  19  Wend.  399;  Steamboat  United 
States  V.  Mayor,  etc.,  5  Mo.  230;  Simpson  v.  Hand,  6  Whart.  811; 
36  Am.  Dec.  231;  Steamboat  Clipper  v.  Logan,  18  Ohio,  37,''>;  Thomp- 
son V.  Railroad  Co.,  57  Mich.  300.  Usually  the  duty  due  from  the 
defendant  to  the  plaintifif  and  its  breach  must  be  set  forth,  or  no 
nejrligence  will  appear.  But  in  cases  of  collision  it  is  often  im- 
possible to  aver  more  than  that  the  plaintiff,  while  on  the  highway 
and  exercising  due  care,  was  run  into  by  the  defendant.  In  an 
action  for  personal  injuries,  resulting  in  death,  caused  by  a  collision 
on  a  higliway,  namely,  the  public  waters  of  the  state,  the  declara- 
tion sufficiently  states  a  cause  of  action  by  charging  that  the  de- 
fendant's servants  so  negligently  and  carelessly  managed  and  navi- 
gated its  steamer  that  it  ran  upon  and  sunlc  the  vessel  of  the 
plaintiff's  testator,  without  stating  particularly  in  what  the  negli- 
gence consisted.  Parker  v.  Steamboat  Co..  17  R.  I.  376;  .33  Am.  St. 
Rep.  860;  and  see  Chase  v.  Steamboat  Co..  10  R.  I.  79;  16  Wall.  .522. 

45  Stainback  v.  Rae.  14  How.  (U.  S.)  .5.32;  Williamson  v.  Barrett. 
13  id.  101;  Halderman  v.  Beckwith,  4  McLean.  286;  Ban-ett  v.  Wil- 
liamson, id.  r.SO;  4  Harring.  228;  The  Brig  Veruma  v.  Clara,  1  Tex.  30. 

46  St.  .John  V.  Paine.  10  How.  (U.  S.)  .583;  Newtcm  v.  Stebbins,  10 
id.  586;  The  Buropa,  2  id.  557;  Western  Belle  v.  Wagner.  11  Mo.  30. 


911  PEKSONAL    INJUEY,    BY    NEGLIGENCE.  §    1831 

II.  That  one  oi"  said  locomotives,  and  the  train  thereto  at- 
tached, ran  from    to    ,  and  back 

again,  each  day;  and  anotlier  tliereof  ran  from   

to  said   and  back  again,  each  day;  wliich  said 

locomotives,  with  their  respective  trains,  were  used  and  accus- 
tomed to  meet,  and  safely  pass  each  other,  at 

III.  That  the  said  plaintiif  was  employed  by  the  said  defend- 
ant as  an  engineer  upon  one  of  said  locomotives,  at  and  for 
a  certain  hire  and  reward  agreed  upon  by  the  parties  in  that 
behalf,  and  was  accustomed  to   stop  the  said  last-mentioned 

locomotive  at    aforesaid,  under  the  instruction 

by  him  received  from  the  said  defendant,  and  there  to  pass 
the  said  other  locomotive  as  aforesaid. 

IV.  That  by  reason  of  the  premises  it  became  the  duty  of 
the  said  defendant  to  give  the  said  plaintiff  due  notice  of  any 
change  in  the  place  of  meeting  and  passing  of  the  said  locomo- 
tives and  their  respective  trains,  yet  the  said  defendant,  not 

regarding  its  said  duty,  did,  on  the day  of , 

18.  .,  change  the  place  of  meeting  and  passing  of  said  locomo- 
tives, with  their  respective  trains,  from  said   to 

said   ,  and  did  direct  said  change  to  be  carried 

into  effect  on  the day  of ,  18 .  . 

V.  That  the  said  defendant  wholly  neglected  and  failed  to 
give  the  said  plaintiff  notice  of  said  change  in  the  place  for 
the  passing  of  said  locomotives  with  their  respective  trains,  and 
whilst  the  said  plaintiff  was  proceeding,  in  his  capacity  as  engi- 
neer as  aforesaid,  on  one  of  said  locomotives,  with  the  train 
thereto  belonging,  according  to  the  directions  before  that  time 
given  to  the  said  plaintiff  by  the  said  defendant,  between 
and  aforesaid,  the  other  locomo- 
tive with  its  train,  coming  from   to   , 

ran  against  it,  and  violently  crushed  the  same. 

VI.  That  by  rea,son  thereof  the  plaintiff  was  severely  scalded, 
bruised,  burnt,  and  woundod,  and  became  sick,  sore,  lanio,  and 

disordered,  and  so  remained  for  tlio  ppace  nf months, 

and  was  compelled  to  expend  llie  sum  of dollars 

for  medical  attendance:  and  was  prevented   from  ntttMiding  to 
his  ordinary  business,  and  lost  all  the  wages  he  ofberwise  would 

have  earned,  to-wit,  the  nun  of   dollars,  to  his 

damage   dollars. 

[Demand  of  Ji'doment.] 


ij5;     ISo'v^-l^oU  roK.MS    OF    COMIM.AINTS.  912 

§  1832.  Company,  when  not  liable.  The  fact  that  a  railroad 
company 's  t^orvaut  was  oi'  a  liigher  grade  tluui  another  servant 
of  said  company,  injured  tlirough  his  negligence,  does  not  mal-ce 
the  company  liable*^ 

§  1833.  Employer,  when  liable.  If  injury  to  the  employee 
results  from  fault  or  negligence  on  the  part  of  tiie  employer, 
the  employer  is  liable.-'^  But  if  such  injury  results  from  de- 
fects in  machinery,  etc.,  notice  of  such  defect  must  be  brought 
home  to  the  employer.^®  An  allegation  that  defendant  "  negli- 
gently provided"  such  machinery,  is  held  a  sufficient  averment 
of  knowledge.^*^ 

§  1834.  Joinder  of  parties.  Master  and  servant  may  be 
joined  as  defendants  in  an  action  to  recover  for  the  negligence 
of  the  ser^'ant.'^^ 

§  1835.  Mutual  negligence.  The  rule  that  the  plaintiff  can 
not  recover  if  his  own  wrong  as  well  as  that  of  the  defendant 
conduced  to  the  injury,  is  confined  to  cases  where  his  wrong 
or  negligence  has  immediately  or  approximately  contributed  to 
the  result.^2  x  slight  want  of  care  on  the  part  of  the  plaintiff 
will  not  excuse  gross  negligence  by  the  defendant.^^ 

§  1836.  Want  of  ordinaiy  care.  In  Indiana,  in  an  action 
against  a  railroad  company  by  one  of  its  servants  to  recover  for 
injuries  received  through  the  negligence  of  another  servant,  the 
complaint  must  allege,  either  expressly,  or  by  stating  facts  from 
which  it  clearly  appears,  that  the  plaintiff  did  not  by  his  own 

47  Shanok  v.  Northern  Central  R.  R.  Co.,  25  Md.  462;  Ciimberland 
Coal  &  Iron  Co.  v.  Scally,  27  Md.  589;  IMcLean  v.  Blue  Point  Gravel 
Min.  Co.,  51  Cal.  255. 

4S  Ryan  V.  Fowler,  24  N.  Y.  410;  82  Am.  Deo.  315;  Connolly  v. 
Toillon,  41  Barb.  3G6. 

49  Kunz  V.  Stewart,  1  Daly,  431;  Loonam  v.  Brockway,  28  How. 
Pr.  472. 

50  KnaresborouRh  v.  Belcher  S.  M.  Co.,  3  Sawyer,  446. 

51  Montfort  v.  Hughes,  3  E.  D.  Smith,  .591. 

■'•.2  Kline  V.  C.  P.  R.  R.  Co..  37  Cal.  400;  99  Am.  Dec.  282;  citing 
Neeflham  v.  San  Francisco  &  S.  .T.  R.  R.  Co..  37  Cal.  409. 

ns  Bequotte  V.  People's  Trans.  Co..  2  Greg.  200;  Hart  v.  Railroad 
Co.,  94  Mo.  2.55;  4  Am.  St.  Rep.  .374;  Hays  v.  Railway  Co.,  70  Tex. 
602;  8  Am.  St.  Rep.  624;  Bomick  v.  Railroad  Co.,  62  Iowa,  167. 


913  PEESOXAL    INJURY,    BY    NEGLIGENCE.  §    1837 

fault  or  negligence  contribute  to  the  injury.-'^  Generally,  how- 
ever, it  is  not  necessary  for  the  plaintiif  to  allege  in  his  com- 
plaint that  the  injury  happened  without  any  want  of  ordinary 
care  on  his  part;  except  where  the  facts  alleged  are  such  as  to 
raise  a  presumption  of  such  fault  in  him."'' 

§    1837.   For  injuries  to  engineer  of  a  railroad  company  —  said 
company  having  used  a  condemned  locomotive. 

for)n  No.   439. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18.  .,  the 

defendant  w^as  a  corporation,  duly  incorporated  under  and  pur- 
suant to  the  laws  of  the  state  of   ,  and  was  the 

owner  of  a  certain  railroad,  and  of  a  locomotive  propelled  by 
steam  on  said  railroad,  and  by  said  defendant  used  and  em- 
ployed in  carrying  and  conveying  passengers  and  goods  [or 
hauling  trains  of  cars  containing  passengers  and  goods],  upon 

and  over  the  said  railroad  of  the  said  defendant,  from 

to   

II.  That  the  said  plaintiff  on  the  day  and  year  aforesaid,  at 

aforesaid,  and  at  the  time  of  the  committing  of 

said  grievances,  wa.s  in  the  employ  of  the  said  defendant,  as 
engineer  upon  said  locomotive,  so  moved  and  propelled  by 
steam  as  aforesaid:  and  tliat  it  then  and  there  became  and  was 
the  duty  of  the  said  defendant  to  procure  a  good,  safe,  and 

64  Evansvillo  R.  R.  Co.  v.  Dexter.  24  Ind.  411;  Railroad  Co.  v. 
rjroono,  lOfJ  id.  270;  .5.5  Am.  Rep.  7:^0;  Bmnnen  v.  Gravel  Road  Co., 
11.5  Ind.  11.5:  7  Am.  St.  Rcp-  411;  Evansville.  otc.  R.  R.  Co.  v.  Malott, 
1.3  Ind.  App.  289;  also  Messeuffer  v.  Rate,  42  Iowa,  443;  Grepoiy  v. 
Wood^^o^th,  9.S  Iowa.  24fi. 

f'S  .Tolinson  v.  Hudson  River  R.  R.  Co.,  5  Duer,  21;  S.  C,  20  N.  Y. 
r..5;  7.5  Am.  Deo.  .37.5;  "Wolfe  v.  Supervisors  of  Ridimond.  11  .\lih. 
I'r.  270;  S.  C.  19  How.  Pr.  .370;  Burdifk  v.  Worral.  4  Rarb.  ."9(;; 
Holt  V.  Wliatley.  .51  Ala.  .5^9;  Hipley  v.  Gilmer.  .3  Mont.  97;  .3.5  Am. 
J{(«p.  4.50;  Nelson  v.  City  of  Hclon.n.  Hi  Mont.  21;  Texas  &  V.  R.  W. 
Co.  V.  Mun>ii.v,  40  Tex.  .3.5(;;  20  Am.  R<'p.  272;  Robinson  v.  W.  V. 
R.  R.  Co..  4.S  Cal.  409:  House  v.  Meyer.  100  id.  .592;  Melliado  v. 
Tran.sp.  Co..  27  Hun,  99;  A\'ilson  v.  Railn.jid  C<\.  20  Minn.  27S;  .37 
Am.  Rep.  410;  Gram  v.  Rsiilroad  Co..  1  N.  Dak.  2.52;  CoujrliHy  v 
Railroad  Co.,  21  Orei:.  245;  .Johnston  v.  Railroad  Co..  2.3  id.  91;  I.ee 
V.  Gas  LiKlit  Co.,  9S  N.  Y.  115;  Hiekman  v.  Railroad  C(»..  00  Miss. 
1.54:  cniitra.  Louisville,  ete..  R.  R.  Go.  v.  Rolnnd.  .5.3  Ind.  398;  see, 
also,  Chicago  &  N.  W.  R.  Co.  v.  Coss,  73  111.  394. 

YoL.  1—115 


§    1838  FORMS    OF    COiMPLAINTS.  914 

secure  locomotive,  with  good,  sai'e,  and  seouro  machinery  and 
apparatus,  to  move  aud  propel  the  same  as  aforesaid. 

III.  That  the  said  deldndant  conducted  itself  so  carelessly, 
negligently,  and  unskillfully,  that,  by  and  through  tlie  careless- 
ness, negligence,  and  default  of  the  said  defendant  and  its  ser- 
vants, it  provided,  used,  and  suffered  to  be  used,  an  unsafe, 
defective,  and  insulhcient  locomotive,  of  all  which  it  had  notice. 

IV.  That  for  want  of  due  care  and  attention  to  its  duty  in 

that  behalf,  on  the  said day  of ,  18 .  . , 

at ,  aforesaid,  and  whilst  the  said  locomotive  was 

in  the  use  and  service  of  said  defendant,  upon  said  railroad,  and 
whilst  the  said  plaintiff  was  on  the  same,  in  the  capacity  afore- 
said, for  the  said  defendant,  the  boiler  connected  with  the 
engine  of  the  said  locomotive,  by  reason  of  the  unsafeness,  de- 
fectiveness, and  insecurity  thereof,  exploded;  whereby  large 
quantities  of  steam  and  water  escaped  therefrom,  and  fell  upon 
the  said  plaintiff,  by  which  he  was  greatly  scalded,  burnt,  and 
wounded,  and  became  sick,  sore,  and  disordered,  and  so  remained 

for  the  space  of  months,  and  was  compelled  to 

expend  the  sum  of  dollars  for  medical  attend- 
ance, and  was  prevented  from  attending  to  his  ordinai7  busi- 
ness, and  lost  all  the  wages  he  other^vise  would  have  earned, 
to-wit,    the    sum    of    dollars,    to    his    damage 

• dollars.^^ 

[Demand  of  Judgment.] 

§  1838.  Company  liable  for  acts  of  servants.  It  has  been  held 
in  a  case  where  men  are  in  the  employ  of  a  manufacturing 
company,  that  where  an  injury  is  suffered  through  the  gross 
carelessness  of  the  agent  of  the  company,  the  company  is  not 
liable  in  damages,  where  both  the  injured  party  and  the  agent 
through  whose  neglect  the  injury  was  caused,  were  engaged 
in  their  respective  duties.^'^  It  has  been  the  opinion  in  a  large 
number  of  cases  very  similar  to   those   referred  to,   that  the 

•"^fl  The  above  form  is  partially  taken  from  Nash's  Pleadings  and 
Forms,  and  is  here  given,  althonsli  there  are  ffrave  donl)ts  about  an 
action  lyinjr  a.irainst  the  railroad  oompany  in  a  case  of  that  char- 
acter. This  action  was,  however,  sustained  by  the  Snpreme  Court 
of  the  state  of  Ohio,  in  Little  Miami  R.  R.  Co.  v.  Stevens.  20  Ohio, 
41."i;  see,  also,  Diamond  v.  Railroad  Co..  G  Mont.  .580;  .Tohnson  v. 
Boston,  etc.,  Min.  Co.,  16  Mont.  164.  But  it  seems  the  court  in 
McGlynn  v.  Brodie,  .31  Cal.  .376,  holds  to  a  different  doctrine. 

67  Albro  V.  Agawam  Canal  Co.,  6  Cush.  75. 


915        PEESOXAL  IXJUEY,  BY  XEGLIGEXCE.   §§  1839,  1840 

iuL^uii-}'  should  be  made,  "  Did  the  accident  happen  through 
the  fault  of  the  company  or  the  fault  of  its  sen^ajits?  "  aaid  ii 
through  the  fault  of  the  sen'ants,  and  without  any  fault  on  the 
part  of  the  company,  then  it  would  not  be  liable.  In  the  case 
of  Keegan  v.  Western  Eailroad  Corporation,  8  X.  Y.  175;  59 
Am.  Dec.  476,  it  was  held  that  the  defendant  was  liable,  on 
the  ground  that  the  neglect  was  that  of  the  corporation,  and 
not  of  its  servants,  and  so  did  not  come  within  the  principle 
established  in  Coon  v.  S.  &  U.  R.  E.  Co.,  5  N.  Y.  493.  The 
locomotive  in  this  case  had  been  reported  as  insufficient  by  the 
engineers,  but  the  corporation  continued  to  use  it;  hence  it 
was  the  fault  of  the  corporation,  and  not  of  its  servants.  Where 
the  injury  was  alleged  to  have  been  caused  by  the  negligence 
of  an  engineer  who  was  employed  by  a  superintendent  who 
had  full  authority  and  control  of  the  work,  and  employed  and 
discharged  the  workmen,  the  complaint  must  also  allege  that 
the  defendants  were  negligent  in  the  selection  of  their  super- 
intendent, or  it  does  not  state  a  cause  of  action  against  them."^* 

§  1839.  Liability  of  master.  A  master  is  bound  to  use  reason- 
able care  and  diligence  to  prevent  accident  or  injury  to  his 
sen^ant,  in  the  course  of  his  employment,  and  is  responsible  in 
damages  for  failure  to  do  so.^®  A  common  employer  is  not 
responsible  for  the  injury  to  one  sers^ant,  occasioned  by  the 
negligence  of  another,  in  the  course  of  their  common  employ- 
ment, unless  he  himself  was  in  fault.^°  A  railroad  company 
having  employed  competent  persons  to  supervise  and  inspect 
its  roadbed  and  bridges,  is  not  liable  for  an  injury  to  one  of 
its  servants,  caused  by  the  falling  of  a  bridge,  in  consequence 
of  a  latent  defect.^^ 

§  1840.  Risk  of  employee.  In  a  California  ca.se  it  is  held 
that  "if  an  employee  works  with  or  near  machinery  wliioh  is 
unsafe,  and  from  which  ho  is  liable  to  sustain  injun-,  with  a 

BS  Collier  v.  Rtelnhart.  51  Cal.  lin. 

BeHallowor  v.  ITenley.  H  Pal.  200:  Riley  v.  Rallrofid  Co..  27  W.  Va. 
14rt:  Rpnzint'  v.  St(>iinvay,  101  \.  Y.  .>I7:  Mt'ltT  v.  Mortrnn.  S2  Wis. 
2H0:  ?.?.  Am.  Rr.  Kop.  .",0. 

fiOT\'ri(.'lit  V.  New  Yorl<  Tout.  R.  R.  Co..  2.'  N.  Y.  .'r,2;  Troadwell 
V.  IMaynr  of  Now  Yorl<.  1  Daly.  12:^:  Kunz  v.  Stnnrt.  id.  4^1: 
Mathews  v.  Case.  HI  Wis.  401;  .''.0  Am.  R<-i>  l^'l:  Blalc  v.  Rallrnnd 
Co..  70  Me.  GO;  35  Am.  Rop.  207. 

fli  Wnrner  v.  Erie  Railway  Co.,  .''.O  \.  Y.  4nS;  see  Cal.  Civil  Ood©, 
S§  1000-1071,  inflnsive. 


§    18-il  rORMS    OF    COMPLAINTS.  91G 

kuowlodgo  or  means  of  knowing  its  condition,  he  takes  the  risk 
incident  to  the  employment  in  which  he  is  thus  engaged,  and 
can  not  maintain  an  action  for  injuries  sustained  arising  out 
of  accident,  resulting  from  such  defective  condition  of  the 
machinery."^^ 

§  1841.  By  executor  or  administrator,  against  a  railroad 
company,  for  injuries  causing  death. 

Forvi  No.  460. 

[Title.] 
The  plaintitT,  as  the  executor  [or  administrator]  of  the  es- 
tate of  A.  B.,  deceased,  complains  and  alleges: 

I.  That  on  the   day  of   ,  18 .  . ,  the 

defendant  was  a  corporation  duly  organized  by  [or  under]  the 
laws  of  this  state  and  w^as  a  common  carrier  of  passengers  for 
hire,  by  railroad,  between   and   

II.  That  on  that  day  said  defendant  received  one  A.  B.  into 
its  cars,  for  the  purpose  of  conveying  him  therein  as  a  passen- 
ger from    to    [for    

dollars  paid  to  them  by  said  A.  B.] 

III.  That  Avhile  he  w^as  such  passenger,  at   ,  a 

station  on  the  line  of  the  said  railroad,  by  and  through  the 
carelessness  of  the  defendant  and  its  servants,  a  collision  oc- 
curred by  which  [the  cars  of  said  railroad  were  thrown  from  the 
track,  and  the  car  in  wdiich  the  said  A.  B.  then  was  was  precipi- 
tated down  an  embankment,  and  the  said  A.  B.  was  thereby 
killed,  or  as  the  case  may  be]. 

IV.  That  on  the day  of ,  18 .  . ,  letters 

of  administration  upon  the  estate  of  the  said  A.  B.  were  duly 

issued  by  the  Probate  Court  of  the  county  of to 

the  plaintiff,  by  which  he  was  appointed  administrator  of  all 
the  goods  and  credits  belonging  to  the  said  A.  B.  at  the  time 
of  his  death,  and  he  thereupon  was  qualified  and  entered  upon 
his  duties  of  such  administration. 

V.  That  by  reason  of  the  premises  the  plaintiff,  as  such  ex- 
ecutor [or  administrator],  hath  sustained  damage  in  the  sum 
of dollars. 

[Demand  of  Judgment.] 

«2McGlynn  v.  Brodio,  .31  Cal.  ?,7r,;  see  McGatrick  v.  Wason,  4  Ohio 
St.  .569;  Hayden  v.  Smithville  Mfff.  Co.,  29  Conn.  5,58;  William  v. 
Clouffh.  .3  Hurlst.  &  X.  2.5S;  Griffiths  v.  Oidlow.  id.  G4S:  Dynen  v. 
Lparh,  40  Enff.  Tv.  &  E.  491;  Skipp  v.  Eastern  Counties  R.Tihvay  Co., 
9  Exch.  223;  Story  on  Agency,  6th  ed.,  §  453,  and  notes;  Hallower  v. 


917  PERSONAL    INJURY,    BY    XEGLIGEXCE.  §    1843 

§  1842.  By  heirs,  against  railroad,  for  injiu'ies  to  employee 
causing  death,  resulting  from  defective  machinery. 

Form  Xo.  461. 

[Title.] 
The  plaintiffs  complain,  and  allege: 

I.  That  the  plaintiff  Mary  Doe  is  the  widow  of  John  Doe, 
deceased;  that  said  plaintiff'  and  said  deceased  intermarried  on 
the  day  of  ,18.. 

II.  That  the  plaintiff'  James  Doe  is  the  only  child  of  said 
John  Doe,  deceased;  that  the  plaintiff  James  Doe  is  an  infant, 
less  than years  of  age;  that  before  the  commence- 
ment of  this  action  said  Mary  Doe,  his  mother,  was  by  an  order 

of  the  Superior  Court  of county,  duly  made  and 

given,  appointed  guardian  ad  litem  of  said  infant,  for  the  pur- 
pose of  appearing  for  him  in  this  action. 

III.  [Allege  defendant's  corporate  existence  and  business,  as 
in  form  No.  469.] 

IV.  That  on  or  about  the   day  of   , 

18. .,  said  defendant  was  the  owner  of,  and  engaged  in  running 
and  operating  a  railroad  "nd  train  of  cars  in  the  county  of 
,  state  of 

Y.  That  on  said  day,  and  at  the  time  of  the  injuries  herein- 
after mentioned,  said  John  Doe,  deceased,  was  employed  and 
hired  by  the  defendant  as  a  brakeman  on  said  train,  and  was 
then  and  there  acting  as  and  discharging  the  duties  of  such 
brakeman. 

VI.  That  at  the  time  aforesaid  one  of  the  brake  wheel?  and 
brake  machiner}-  on  said  train,  which  said  John  Doe,  as  such 
l)rakeman,  was  required  to  operate,  was  imperfectly  constructed, 
defective,  and  unsafe;  that  said  imperfection,  defectiveiu>ss,  in- 
adequacy, and  unsafeness  could  have  been  by  said  defendant 
discovered  and  known  by  the  uso  and  exercise  by  them  of 
ordinary  care  and  diligence,  and  were  at  the  time  aforesaid 
known  to  said  defendant;  but  the  same  were  unknown  to  the 
paid  John  Doe. 

VTT.  That  at  the  time  aforei=aid,  and  while  snid  John  Doe 
was  employed  and  engaged  in  the  dntios  and  ooonpation  of 
brakeman,  as  aforesaid,  said  brake-wheel  and  brake  machinery, 
by  reason  of  the  imperfection,  defectiveness,  inade(iuacy.  nnd 
unsafeness  thereof,  broke  and   pave   way,   without  any   negli- 

Henley,  0  Cnl.  200:  DaniPl  v.  -nniUvny  Co..  ?,r,  w.  Vn.  r.HT;  :^2  Am. 
Rt  Rep.  870;  Fitzgerald  v.  Taper  Co..  1.".  Mass.  \r>rv.  .11  Am.  St.  Hop. 
531 


§§  1843, 1844  FORMS  of  complaints.  918 

geuce  or  fault  of  said  John  Doe,  by  reason  whereof  said  John 
Doe  was  cast  upon  tlie  ground,  and  there  crushed  and  killed 
by  said  train. 

YIII.  That  said  plaintiffs  were  wholly  dependent  upon  said 
John  Doe  for  subsistence  and  support,  and  by  reason  of  liis 
death  are  left  utterly  helpless  and  destitute,  and  are  damaged 

in  the  sum  of dollars. 

[Demand  of  Judgment.] 

§  1843.  Conflict  of  laws.  An  administrator  appointed  in  one 
state  can  not  maintain  an  action  there,  on  the  statute  of  another 
state,  which  gives  to  the  personal  representatives  of  a  person 
killed  by  wrongful  act,  neglect,  or  default,  a  right  to  maintain 
an  action  for  damages  in  respect  thereof,  notwithstanding  the 
death,  for  the  benefit  of  the  widow  or  next  of  kin,  against  the 
party  that  would  have  been  liable  if  death  had  not  ensued.^* 

§  1844.  Damages.  Damages  ensuing  from  bodily  pain  need 
not  be  alleged  specially  in  the  complaint.'^  But  funeral  ex- 
penses are  not  recoverable,  except  as  special  damages,  if  recover- 
able at  all,  and  must  be  specially  pleaded.^^ 

fls  Richardson  v.  New  York  Cent.  R.  R.  Co.,  98  Mass.  85.  Statutes 
giving  a  right  of  action  for  the  death  of  a  person  wrongfully  caused 
by  another,  though  having  no  extra-territorial  effect,  will  be  recog- 
nized by  comity,  and  an  action  may  be  maintained  in  one  state, 
altliough  the  wrongful  act  causing  the  death  was  committed  in 
another  state,  uiwn  proof  of  the  laws  of  the  latter  state  authorizing 
the  action.  Binice  v.  Railroad  Co.,  8.3  Ky.  174;  Leonard  v.  Navigation 
Co..  84  N.  Y.  48;  38  Am.  Rep.  491;  Knight  v.  Railroad  Go.,  108  Penn. 
St.  250;  56  Am.  Rep.  200;  Wooden  v.  Railroad  Co.,  12tt  N.  Y.  10;  22 
Am.  St.  Rep.  803;  Stone  v.  Groton,  etc.,  Mfg.  Co.,  77  Hun.  99. 

64Curtiss  V.  Rochester  &  Syracuse  R.  R.  Co.,  20  Barb.  282; 
affirmed,  18  N.  Y.  534;  75  Am.  Dec.  258. 

66  Gay  V.  Winter,  34  Cal.  153;  see  Petrie  v.  Railroad  Co..  29  S.  C. 
303;  Muriihy  v.  Railroad  Co.,  88  N.  Y.  445.  As  to  measure  of 
damages  in  case  of  the  death  of  a  woman  having  children,  see 
Tilley  v.  Hudson  River  R.  R.  Ck).,  29  N.  Y.  2,52;  80  Am.  Dee.  297; 
S.  C,  24  N.  Y.  471;  Mclntyre  v.  New  York  Cent.  R.  R.  Co.,  43  Barb. 
532.  It  is  held  that  no  compensation  can  be  given  for  wounded 
feelings,  nor  for  the  pain  and  suffering  of  the  deceased.  Hutcliins 
v.  Railroad  Co.,  44  ISIinn.  5;  Morgan  v.  South  Pac.  Co.,  95  Cal.  510; 
29  Am.  St.  Rep.  143.  The  recovery  is  for  the  injuries  inflicted  upon 
the  plaintiffs  and  not  for  the  injuries  inflicted  upon  the  deceased. 
Redfield  v.  Railway  Co.,  110  Cnl.  277.  As  to  the  dam.nges  recoveiable 
In  this  action,  see.  also,  Pepper  v.  South.  Pac.  Co.,  105  id.  389;  Lee 
V.  South.  Pac.  Co..  101  id.  118;  Sloane  v.  Railway  Co..  Ill  Id.  GG8. 
As  to  the  rule  for  pleading  special  damages,  see  ante,  §  326. 


919  PEKSOXAL   INJURY,    BY    NEGLIGENCE.       §§    1845-1848 

§  1845.  Liability  for  causing  death.  When  the  death  of  a 
person,  not  being  a  minor,  is  caused  by  the  wrongful  act  or 
neglect  of  another,  his  heirs  or  personal  representatives  may 
maintain  an  action  for  damages  against  the  person  causing  ilie 
death:  or  if  such  person  be  employed  by  another  person  who 
is  responsible  for  his  conduct,  then  also  against  such  other 
person.  In  every  action  under  this  and  the  preceding  section, 
such  damages  may  be  given  as  under  all  the  circumstances  of 
the  case  may  be  just.^*^  In  the  case  of  a  minor,  the  father,  cr 
where  he  is  dead  or  has  deserted  his  family,  the  mother,  or  the 
guardian  of  a  ward  may  bring  the  action.^'^ 

§  1846.  Limitation  of  action.  In  California,  e\Qvy  action  for 
the  death  of  a  per&un  by  wrongful  act  shall  be  commenced 
within  two  years  after  the  death  of  such  deceased  person.^ 

§  1847.  Negligence.  Where  the  complaint  alleged  that  a  car 
of  the  defendant,  in  charge  of  their  servant  and  agent,  was 
wrongfully  driven  over  a  child,  whereby,  etc.,  and  that  the 
defendants,  by  negligence  of  themselves  and  their  agents,  ran 
over  the  child  and  caused  her  death,  it  was  held  that  evidence 
was  admissible  of  any  facts  of  negligence  on  the  part  of  the 
defendants  in  the  construction  of  the  cars,  which  would  have 
aided  in  causing  such  injury.^® 

§  1848.  Parties  plaintiff.  A  father,  or  in  case  of  his  death 
or  desertion  of  his  family,  the  mother,  may  maintain  an  action 
for  the  injury  or  death  of  a  child;  and  so  may  a  guardian  for 
the  injury  or  death  of  his  ward.'^^  A  parent  may  recover  flie 
expenses  of  nursing  and  healing  a  minor  child,  even  though 
the  child  be  so  young  that  there  is  no  loss  of  service.'^^     An 

eTal.  Code  Civ.  Fro.,  §  'ill.  Tlie  ar-tion  may  be  lirnnjrlit  either 
by  tlie  liplrs  of  tlie  cloccascd  or  by  liis  ixTSoiial  represeiitativt's,  but 
when  one  aotion  is  bronplit  tlint  is  tlic  only  .-wtioii  wliicli  tlic  statute 
permits.  Munro  v.  Dredfrin};  Co..  84  Cal.  .'.1.");  18  Am.  St.  Rep.  248. 
The  word  "heirs"  in  tlic  statnte  is  nsed  in  its  rommon4ii\v  sense, 
and  denotes  those  wlio  are  enpalWe  of  inlieritinp  from  tlie  deceased 
person  Kf^nerally,  witliont  refereneo  to  thf  di.strllnitiou  of  community 
property.    Re<lfield  v.  Ifallway  Co.,  lio  Cal.  277. 

67  Cal.  Code  Civ.  Pro..  §  370. 

68  Id..  8  .3.?9,  Kul)d.  .3. 

eeoidfleld  v.  New  York  i<c  Ilarlfiii  R.  R.  Co.,  .3  E.   O.  Smith,  103. 
70  Cal.  Code  Civ.  Pro.,  S  'Md 
Ti  Sykes  v.  Lawlor,  4J>  C:il.  230. 


^^    ISrJ,  liSJU  FOK.MS    01'    COMI'LAINTS.  930 

action  luay  be  maintained  by  a  father  as  administrator  of  an 
uumarried  infant  son,  and  it  is  not  indispensable  that  deceased 
sliould  leave  a  widow  aaid  next  of  kin.''-  A  husband  can  not 
maintain  an  action  for  tlie  instantaneous  killing  of  his  wife 
through  the  negligence  of  defendant.  The  well-settled  coui- 
mon-law  rule  that  no  damages  can  be  recovered  by  action  for 
injuries  resulting  in  immediate  death  applies  to  actions  brought 
by  a  husband  for  injury  to  his  wife.  The  loss  of  society  and 
assistance  does  not  alter  the  case;  and  the  New  York  statute 
of  1847  has  not  extended  the  remedy  to  such  an  injury.'^^  An 
action  in  Pennsylvaiiia  against  a  railroad  company  for  negligence 
in  causing  the  death  of  a  father,  is  properly  brought  in  the  name 
of  all  the  children.  The  recovery  is  for  the  benefit  of  all,  the 
amount  to  be  distributed  as  in  case  of  intestacy. '^'^ 

§  1849.  Parties  defendant.  In  New  York,  a  passenger  in 
a  vehicle  or  raih'oad  ear,  injured  by  its  collision  with  another 
vehicle  or  car,  resulting  from  the  concurrent  negligence  of  the 
owners  of  such  vehicles  or  cars,  or  their  employees,  may  main- 
tain a  joint  action  against  both.'^'^ 

§  1850.  Personal  representatives.  Every  action  for  the 
death  of  a  person,  caused  by  the  wrongful  act,  neglect,  or  default 
of  a  person  or  corporation,  sJiall  be  brought  by  and  in  the 
names  of  the  personal  representatives  of  such  deceased  person.'^^ 
The  provision  of  the  Louisiana  statute,  that  the  cause  of  action 
for  the  wrongful  death  of  a  person  shall  survive  to  the  personal 
representatives  for  the  space  of  one  year  from  the  death,  is  a 
legal  subrogation,  in  favor  of  the  persons  designated  to  the 
right  of  action  of  the  deceased;  and  in  case  of  a  suit  under  that 

T2  McMahon  v.  Mayor  of  New  York.  33  N.  Y.  (M2. 

TSOreen  v.  Hudson  River  R.  R.  Co..  2  Keyes,  204;  afflrmlnsr  28 
Barb.  9;  see  Wooden  v.  Rnilroad  Co.,  12r,  N.  Y.  10;  22  Am.  St.  Rep. 
803. 

74  North  Penn.  R.  R.  Co.  v.  Ro])inson,  44  Penn.  St.  175. 

75  Chapman  v.  New  Haven  R.  R.  Co..  19  N.  Y.  341;  75  Am.  Dec. 
344;  Colegrove  v.  New  York  &  N.  H.  R.  R.  Co..  20  N.  Y.  492;  75 
Am.  Dec.  418;  Webster  v.  Hudson  River  R.  R.  Co.,  38  N.  Y.  260; 
see  dictum  contra  in  Brown  v.  New  York  Cent.  R.  R.  Co.,  32  id.  597; 
88  Am.  Dec.  353;  Mooney  v.  Hudson  River  R.  R.  Co.,  5  Rob. 
548.  See,  also,  in  snpport  of  the  text.  Quill  v.  Railroad  Co.,  16 
Daly,  313;  Railroad  Co.  v.  McWhirter.  77  Tex.  357;  19  Am.  St.  Rep. 
755;  Railroad  Co.  v.  Land  Co.,  27  Fla.  1. 

7"  See  notes,  ante. 


931  PERSOXAL    INJURY,    BY    XEGLIGEXCE.       §§    1851-1852a 

subrogation,  the  plaiutiit'  sliould  allege  that  his  cause  of  actioa 
w&s  derived  from  deceased  under  the  statute,  and  a  neglect 
to  do  this  \nll  be  fatal."^ 

§  1851.  Special  damage.  In  an  action  for  death  by  the 
wrongful  act  of  a  person,  it  is  not  necessary  to  allege  or  prove 
special  damageJ^ 

§  1852.  What  must  be  shown.  To  maintain  an  action  for 
causing  by  wrongful  acts  the  death  of  or  injury  to  a  person 
two  things  must  be  shown:  1.  An  obstruction  in  the  road 
by  the  fault  of  the  defendant;  2.  No  want  of  ordinary  care  on 
the  part  of  the  plaintiff  or  party  injured.  The  gnn'arncn  of 
the  action  is  the  negligence  of  the  defendant,  and  plaintiff  can 
not  recover  where  it  appears  that  the  negligence  of  the  de- 
ceased or  person  injured  contrilnited  in  any  degree-  to  the  death 
or  injury  sustained."^  But  in  cases  where  the  negligence  of  tlie 
defendants  is  affirmatively  shown,  and  there  is  no  proof  of  the 
conduct  of  the  deceased  or  person  injured,  the  jury  are  at  liberty 
to  infer  ordinary  care  and  diligence  on  his  part,  taking  into 
consideration  his  character  and  ha])its  as  proved,  and  the  natural 
instinct  of  self-preservation. ^°  In  such  actions,  if  the  plaintiff 
makes  a  case  which  does  not  charge  the  deceased  or  the  ])erson 
injured  with  negligence,  the  case  should  be  pemiitted  to  go 
to  the  jury,  under  appropriate  instructions.^^ 

§  1852a.  The  same  —  sufficiency  of  complaint.  A  complaint 
by  an   administratrix   in  an  action   to  recover  damages  for  a 

77Earhart  v.  New  Orleans,  etc.,  K.  II.  Co.,  17  La.  Aim.  24.'^. 

78  Keller  v.  New  York  Cent.  R.  R.  Co.,  24  How.  I'r.  172;  Mc- 
Intyrc  v.  New  York  Cent.  R.  R.  Oo..  43  Barb.  m2.  In  an  aotlon 
under  the  Now  York  statute  (Code  Oiv.  Pi-o.,  §§  ](K)2-4).  for  the 
neglifc'ent  killing  of  a  person,  it  is  not  necessary  to  allcj^e  actual 
damages.  Damages  arc  implied  from  an  nllejialion  of  the  wrong- 
ful act,  and  no  other  allegation  that  damages  have  been  sustained 
by  those  beneficially  interested  in  the  action  is  necessary.  Kenney 
V.  Railroad  Co.,  2  N.  Y.  Rxipp.  r.l2:  41)  Ilnn.  .').T>;  1.")  Civ.  Pro.  R.  'Ml. 
The  loss  of  the  comfort,  society,  supi)oi-t  and  i)rotPctlon  of  the 
deceased  may  be  considered  iiy  llie  Jnry  for  tlie  ijurjxise  of  estimat- 
ing the  pecuniary  loss.  Munro  v.  Dredging  Co..  .«vJ  Cal.  .'1.'>;  IS 
Am.  St.  Rep.  24S:  Morgan  v.  South.  Pac.  C(».,  !».'»  Cal.  nio:  llydo 
V.  T'nion  T'.-ic  T{.  R.  Co.,  7  T'ImIi,  .''.."if J. 

70  Gay  v.  Winter,  .''.4  Cal.  1.'.'',. 

60  Id. 

Slid. 

116 


§    1853  FORMS    OF   COMPLAINTS.  93^ 

death  caused  by  negligence,  which  alleges,  in  substance,  that 
tlie  defendtuit  negligently  left  unprotected  an  open  hatchway 
ou  it«  vessel,  tJirougli  which  the  deceased,  who  was  lawfully 
employed  on  the  vessel,  was  precipitated  and  killed,  owing  to 
his  being  struck  by  a  barrel  of  lime  by  and  through  the  care- 
lessness and  negligence  of  the  defendant,  and  its  servants  and 
employees,  in  and  about  the  loading  of  the  vessel,  states  a  cause 
of  action,  and  shows  a  breach  of  duty  on  the  part  of  the  owner 
of  the  vessel.^^  It  is  not  necessary  in  an  action  for  causing 
death  by  negligence,  for  the  defendant  to  allege  that  the  wrong 
was  committed  in  another  state,  but  it  is  for  the  plaintilf  to 
allege  that  the  cause  of  action  arose  within  the  jurisdiction.**^ 
A  complaint  or  petition  in  such  action  is  fatally  defective, 
which  fails  to  show  that  the  person  or  persons  for  whose  benefit 
the  action  is  brought  have  sustained  pecuniary  injury  by  the 
death  of  the  deceased.^"*  And  such  defective  complaint  or  pe- 
tition will  not  support  even  a  judgment  for  nominal  damages.-^ 

§  1853.  Widow  and  next  of  kin.  It  was  held  in  the  Superior 
Court  of  New  York  that  a  c(unplaint  of  this  kind  must  expressly 
allege  that  there  is  a  widow,  or  next  of  kin,  giving  their  names, 
and  alleging  that  they  had  sustained  pecuniary  injury. ^^  But 
the  doctrine  of  this  case  is  entirely  inconsistent  with  later 
cases.^'^ 

82Davies  v.  Oceanic  Steamship  Co.,  89  Cal.  280. 

f3  Debevoise  v.  New  Yorii,  etc..  R.  R.  Co.,  98  N.  Y.  377;  50  Am. 
Rep.  683. 

84  Orgall  V.  Railroad  Co.,  46  Neb.  4;  Anderson  v.  Raih-oad  Co., 
35  id.  95;  Coops  v.  Railroad  Co.,  66  Mich.  448;  Charlebois  v.  Rail- 
road Co.,  91  id.  r)9;  Topping  v.  Town  of  St.  Lawrence,  86  \yi.s.  526. 

86  Organ  V.  Railroad  Co..  46  Neb.  4;  Hurst  v.  Railroad  Co.,  84 
Mich.  5.39.  See,  also,  as  to  insufficient  allegations  in  complaint  or 
petition  in  this  action.  Heniy  v.  Lumber  Co.,  48  La.  Ann.  950; 
Miller  v.  Coffin,  19  R.  I.  336;  36  Atl.  Rep.  6. 

86  Safford  v.   Drew,  3  Duer,  627;  and  see  preceding  section. 

87  Chapman  v.  Rothwell,  El.,  Bl.  &  El.  168:  Quin  v.  Mooro,  15 
N.  Y.  436;  Oldfield  V.  New  York  &  Harlem  R.  R.  Co.,  14  id.  316; 
Dickens  v.  New  Y'ork  Cent.  R.  R.  Co.,  28  Barb.  41;  Keller  v. 
New  York  Cent.  R.  R.  Co.,  17  How.  Tr.  102.  The  first  of  these 
cases  expressly  decides  that  no  allegation  of  damages  to  the  next 
of  kin  is  necessary;  and  though  the  whole  doetrine  of  Safford  v. 
Drew  is  not  overruled  in  terms,  yet  it  is  in  effect,  and  that  nominal 
damages,  at  least,  may  be  recovered  on  the  above  complaint,  with 
liberty  to  prove  actual  damage.  In  California,  however,  the  stat- 
ute especially  provides  for  this  class  of  actions.    See  Cal.  Code  Civ. 


923  PEESOXAL   INJURY,    BY    NEGLIGENCE.       §§    185-i,  18o5 

§    1854.   Against  a  municipal  corporation,  for  injuries  caused 
by  leaving  the  street  in  an  insecure  state. 
Form  No.  462. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  a  municipal  corporation,  duly  or- 
ganized under  the  laws  of  this  state. 

II.  That,  among  other  things,  it  is,  by  its  charter,  made  its 
duty  to  keep  the  streets  in  said  city  in  good  order,  and  at  all 
times  properly  to  protect  any  excavations  made  in  said  streets, 
by  placing  lights  and  signals  thereat  to  indicate  danger. 

III.  That  a  certain  street  in  said  city,  known  as , 

was  and  is  a  common  thoroughfare,  and  used  by  the  citizens 
thereof  and  others;  and  that  the  duty  of  said  defendant  as  to 
said  street  was,  and  became  at  the  time  hereinafter  mentioned,  a 
matter  of  public  and  general  concern. 

IV.  That  on  or  about  the   day  of   , 

18.  .,  a  deep  and  dangerous  excavation  [hole  or  trench]  was  dug 
in  said  street  [or  an  obstrnction  was  placed  in  said  street,  and 
negligently  left  therein],  and  suffered  by  the  defendant,  dur- 
ing a  night  on  or  about  said  day,  to  remain  open,  exposed,  and 
without  proper  protection,  and  without  any  light  or  signal 
to  indicate  danger. 

V.  That  the  plaintiff  on  the  night  aforesaid  was  lawfully 
traveling  on  said  street,  and  was  wholly  unaware  of  danger,  and 
was  accidentally,  and  without  fault  or  negligence  on  his  part, 
precipitated  into  said  excavation  [hole  or  trench],  where]jy  he 
received  great  bodily  injury,  and  was  made  sick  and  sore,  and 
was  thereby  kept  to  his  bed,  and  detained  from  business  for 

days,  and  was  in  consequence  thereof  compelled 

to  expend    dollars  for  medical  attendance  and 

nursing,  and  has  boon  made  pennanently  lame,  to  his  damage 
dollars. 

[Demand  of  Judgment.] 

8  1855.  Cause  of  death.  The  responsibility  in  ca.«?os  of  a  per- 
sonal injury  from  falling  through  a  dofoctivo  sidewalk  is  upon 
him  who  has  the  control  and  manngoment  of  the  work."** 

rrc.  §§  .".TO,  ?,11.  Ro,  in  \*.v.-  York,  f'.xic  Civ.  I'n...  ?!>  liKi'J-l.  Soo 
procpfllnK  sfftlon  find  f-asos  tlicrc  cited. 

"RRoswoll  V.  Lnird,  H  Cn\.  4r,<>:  r.H  Am.  Drc.  :!(.-:  r.-mjoj-  v. 
Soalos.  20  Tfil.  2J.T:  folU.wcd  in  iMi  Pratl  v.  I.iclc,  :i.S  id.  cttl  ;  sop, 
also,  Eustace  v.  Jalins,  id.  3. 


S^    18r)('.-lS()0  FORMS   OF   COMPLAINTS.  934 

§  1856.  Corporation,  liability  of.  A  city  having  the  power 
ana  duty  oi'  lighting  its  streets  is  liable  kn-  injuries  or  death 
caused  by  a  party's  tailing  oil  a  bridge,  opened  tor  the  passage 
of  a  vessel,  in  consequence  of  its  being  insufficiently  lighted.**'^ 
It  is  not  liable  for  negligence  of  a  member  of  paid  lire  de- 
part ment.^*^ 

§  1857.  Defect  in  highways.  Where  plaintiff  was  injured 
owing  to  a  defect  in  a  highway,  but  would  not  have  been  if  the 
horse  had  not  been  vicious  —  he  had  never  driven  the  horse  be- 
fore, and  did  not  know  of  its  viciousness  —  it  was  held  that 
plaintilf  could  recover  substantial  damages.^^ 

§  1858.  Drover,  liability  of.  The  law  governing  the  liability 
of  persons  for  driving  cattle  through  the  streets  of  a  city,  for 
damages  caused  by  injuring  a  person  lawfully  in  the  street, 
without  any  fault  on  his  part,  is  the  same  as  that  by  which  the 
carriers  of  passengers  are  governed.^^ 

§  1859.  Dug,  opened,  and  made.  In  a  suit  caused  by  a  per- 
son's falling  into  an  area  in  a  public  sidewalk,  a  declaration 
charging  that  the  defendant  "  dug,  opened,  and  made "  the 
area,  is  sustained  by  proof  that  he  formed  it  partially  by  exca- 
vation, and  partially  by  raising  walls.^^ 

§  1860.  Foundation  of  action.  The  foundation  of  this  ac- 
tion is  the  personal  tort  of  the  defendant,  aud  not  of  his  testa- 
tors. The  defect  in  the  street  from  which  the  injury  resulted 
to  plaintiff  is  not  alleged  to  have  existed  anterior  to  the  death 
of  such  testator;  hence  no  obligation  was  incurred  by  the  testa- 
tor in  his  lifetime  in  respect  thereto,  which  could  serve  as  a 
basis  for  a  valid  claim  against  his  estate,  or  a  right  of  action 
against  the  administrator  of  his  estate  as  such.®* 

«9  Chicago  V.  Powers,  42  111.  169;  89  Am.  Dec.  418.  See  as  to 
sidewalks,  Bloomington,  City  of,  v.  Bay,  42  111.  !503.  As  to  the  lia- 
bility of  eoriiorations  for  neglect  to  have  proper  precautions  taken 
for  the  safety  of  the  public,  see  Grant  v.  City  of  Brooklyn,  41  Barb. 
381;  Davenport  v.  Ruckman,  10  Bosw.  20. 

00  Howard  v.  San  Francisco.  51  Cal.  .52. 

ill  Daniels  v.  Town  of  Saybrook,  34  Conn.  377. 

02  Ficken  v.  .Tones,  28  Cal.  018. 

93. Bobbins  v.  Chicago  City,  4  Wall.   (U.  S.)  657. 

94  Eustace  V.  Jahns,  38  Cal.  3. 


925  PEESONAL    INJUKY,    BY    ^"EGL1GENCE.       ^§    18G1-18G3 

§  1861.  Nonrepair  of  premises.  A  complaint  against  the 
owner  of  premises  leased  to  a  tliird  person,  to  recover  damages 
sustained  by  plaintiff  by  the  falling  of  a  part  of  the  building 
through  want  of  repairs,  is  bad  on  demurrer,  unless  it  states 
facts  from  wliich  the  court  can  say  that  the  owner  was  bound  to 
keep  the  premises  in  repair.  A  mere  general  allegation  that  de- 
fendant was  bound  to  keep  the  premises  in  repair  is  insulh- 
cient.^^ 

§  1862.  Respondeat  superior.  The  responsibility,  in  cases 
of  personal  injuries,  is  upon  him  who  has  the  control  and 
management  of  the  work,  and  the  relation  of  respondeat  superior 
has  no  application  where  the  relation  of  master  and  servant 
does  not  exist.^*^  Where  there  is  no  power  of  selection  or  direc- 
tion, there  can  be  no  superior,  and  where  a  man  is  employed 
to  do  the  work  with  his  own  means  and  by  his  own  servant, 
he  has  the  power  of  selection  and  direction,  and  he,  and  not 
the  person  for  whom  the  work  is  principally  done,  is  the 
superior.®'^ 

§  1863.  Street  contractor  —  liabilities.  The  responsibility  in 
cases  of  repairs  in  public  streets  made  by  a  contractor  rests  upon 
him  who  has  control  and  management  of  the  work.  The  doc- 
trine of  respondeat  superior  has  no  application  where  the  rela- 
tion of  master  and  servant  does  not  exist,  but  where  a  man  is 
employed  to  do  the  work  with  his  own  means  and  by  liis  own 
servants,  he  and  not  the  person  for  whom  the  work  is  being 
primarily  done  is  the  superior."^  The  law  does  not  impose 
upon  the  owner  of  a  lot  fronting  on  a  street  of  an  incorporated 
city,  the  duty  to  repair  a  defect  in  the  portion  of  the  pnl)lic 
street  upon  which  his  lot  abuts  or  fronts.^^     The  only  duty 

9f>  Casey  v.  Mann,  .">  Alii).  Pr.  ttl;  S.  C,  sub  nom.  Corey  v.  Mann, 
14  How.  Vr.  102;  soo  Brown  v.  Harmon,  21  Barb.  .")0S. 

eoFanjoy  v.  Scales,  20  Cal.  24.3.  The  doctrine  mipnne.l  in  Dn 
Pratt  V.  Lick,  38  id.  (JOl;  and  seo  Lancaster  v.  Ins\nan(e  Co..  92 
Mo.  400;  1  Am.  St.  Hop.  7:50. 

07  Fanjoy  v.  Scales,  20  Cal.  24.3;  ciled  and  followed  in  Du  Pratt 
V.  Lick,  .38  id  001;  sec,  also,  Carlson  v.  Stockin;,',  01  Wis.  4.32; 
Dane  V.  Chenucal  Co.,  104  Ma.s8.  4.^)3. 

osBoswell  V.  Laird,  8  Cal.  400;  f»8  Am.  Dec.  .",1."..  'I'1m>  dorlrlnc 
recofinizcd  in  Fanjoy  v.  Scales,  20  C.'il.  24.".:  ami  ruiiowcd  In  Ihe 
rases  of  iMi  Pratt  v.  Liek.  .38  id.  701;  O'llale  v.  Sacnmicnto.  48  Id. 
212.  and  Kranse  v.  Sacramento,  id.  221;  see  Colgrove  v.  Sniitli,  102 
Id.  2'_'0:  Spence  v.  Sclmltz.  10.3  Id.  208. 

60  Eustace  v.  Jalius,  38  Cal.  3. 


§  ISG-i  FORMS  OF  COMPLAINTS.  926 

imposed  upon  him  is  the  payment  of  the  assessment  wliich  shall 
be  lawfully  imposed  upon  his  lots  or  lands.  So  the  owner  of 
property  is  not  liable  for  the,  torts  of  servants  employed  by  the 
contractor/*^  nor  for  omission  or  negligence  of  contractor  so 
employed.^"^  But  the  principal  contractor  is  liable  for  negli- 
gence of  subcontractors  and  their  servants. ^^^  So  of  a  party 
obtaining  authority  to  do  work  in  a  public  street.^"^  But  public 
officers  are  not  within  the  rule  of  employer  and  employee,  and 
are  not  responsible  for  persons  employed  under  them.^*^*  Where 
a  party  w^as  injured  by  falling  at  night  into  an  excavation  made 
in  grading  the  street  of  a  city,  under  a  city  contract,  given  out 
in  obedience  to  the  law,  owing  to  the  failure  to  put  lights  or 
guards  about  the  place,  the  contractor  and  not  the  city  is 
liable.i«» 

§   1864.   For  injuries  caused  by  rubbish,  in  tlie  street,  whereby 
plaintiff  was  thrown  from  his  carriage. 

Form  No.   463. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant,  on  or  about  the    day  of 

18.  . ,  wrongfully  placed  large  quantities  of  lum- 
ber and  bricks  in  the  public  highway  [known  as 

street],  in ,  and  negligently  left  the  same  therein, 

obstructing  the  highway  during  the  night  time,  and  without 
proper  protection  or  notice  to  citizens  and  travelers  against 
accidents. 

IT.  That  by  reason  of  said  negligence  and  improper  conduct 
of  the  defendant,  in  the  night  time  of  that  day,  the  carriage 
of  the  plaintiff,  with  the  plaintiff  therein,  then  passing  through 
said  street,  was  accidentally  driven  against  the  said  lumber  and 
earth,  and  was  thereby  overturned;  by  means  wdiereof  the 
plaintiff  -was  bruised  and  wounded,  and  was  for  ........  days 

100  Tan  Wert  v.  City  of  Brooklyn,  28  How.  Pr.  4.')1:  O'Roinice 
V.  Hart,  7  Bosw.  511;  Sehular  v.  Hudson  River  R.  R.  Co.,  38  Barb. 
653. 

101  Fish  v.  Dodpe,  P,8,  Barb.  ir>3;  Benedict  v.  Martin,  .30  id.  288; 
Enpel  V.  Eureka  Chib,  137  N.  Y.  100;  33  Am.  Rep.  (592;  Fink  v. 
Missouri  Furnace  Co..  82  :SIo.  27fi;  52  Am.  Rep.  37G;  Powell  v. 
Construction  Co.,  88  Tenn.  092;  17  Am.  St.  Rep.  925. 

102  Creed  v.  Hartmat.  29  N.  Y.  .591;  80  Am.  Dec.  341. 

103  McCamus  v.  Citizens'  Has  Lijiht  Co..  40  Barb.  380. 

i''i4  Murphy  v.  Commissioners  of  Imniitrration,  27  How.  Pr.  41. 
105  James  v.  San  Francisco,  City  of,  0  Cal.  528;  Go  Am.  Dec.  526. 


927  PEBSONAL    INJURY,    BY    XEGLIGEXCE.       §§    I860-I8GT 

prevented  from  attending  to  his  business,  and  was  compelled  to 
expend,  and  did  expend dollars  for  medical  at- 
tendance and  nursing,  to  his  damage   dollars. 

[Demand  of  Judgment.] 

§  1865.  Mutual  negligence.  Where  a  child  was  killed  by 
the  fall  of  a  counter  on  wliich  he  was  climbing,  and  which 
had  been  left  in  the  street  of  a  city  for  two  or  thrcQ  weeks,  the 
child  being  six  years  old,  and  at  the  time  of  his  death  playing 
unattended  six  blocks  from  home,  it  was  held  that  the  city  was 
no  more  negligent  than  the  parents  of  the  child,  and  was  not 
liable.i^ 

8  1866.  For  injuries  caused  by  leaving  a  hatchway  open. 

Form  No.  464. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,  18 .  . ,  the 

defendant  was  the  occupant  of  the  [store  No 

street],  and  had  possession  and  control  of  the  hatchway  herein- 
after mentioned. 

II.  That  on  the  said  day  the  plaintiff  was  in  the  said  [store 
or  building],  by  permission,  of  the  defendant,  for  tlie  purpose 
of  transacting  business  with  him  [or  in  the  discharge  of  his 
duties  as  —  state  what]. 

III.  That  the  hatcliway  on  the  [second]  story  of  flie  said 
building  was  then,  by  tlio  negligence  of  the  defendant,  left  open, 
and  not  in  an}'  manner  protected. 

IV.  That  in  consequence  thereof  the  plaintiff  fell  tlirough  the 
said  hatchway,  and  was  much  injured  [state  special  damage, 
if  any,  as],  and  was  confined  to  his  bed  and  detained  from  l)usi- 

ness  for days,  was  compelled  to  expend 

dollars  for  medical  attendance  and  nursing,  and  bns  boon  made 
permanently  lame,  to  his  damage dollars. 

[Demand  of  Judgment.] 

9  1867.   The  same  —  njiother  form. 

Form   No.   465. 
[Title.] 
The  plaintifT  complains,  nnd  nlloges: 

T.   Tbnt   on   the    dny   f.f    ,   18...   at 

the  defondnnt  wns  tbo  ov.-nor.  nnd  had  posscesion 


inorhirnpn  r.  Starr.  ■!'_'  Til.  171:  W  Am.  Dor>.   122. 


§    18(.i8  FORMS   OF   COMPLAINTS.  928 

and  ooiitrol  of  a  certaiu  building  and  premises  [describe  tliemj, 
uitli  the  appurtoiiances  thereto  belonging,  which  biiikling  was 
then  occupied  by  him  as  [designate  the  uses  ol  a  building,  if 
a  public  resort  J. 

II.  That  said  building  was  negligently  and  carelessly  built, 
inasmuch  as  there  was  in  the  public  hall  in  the  third  story  of 
the  same,  at  the  time  of  its  erection  and  leasing  by  tlie  defend- 
ant, as  well  as  at  the  time  hereinbefore  mentioned,  an  unguarded 
hatchway,  opening  into  the  second  story. 

III.  That  the  defendant,  well  knowing  the  premises,  and 
while  the  owner  and  occupant  [or  while  the  occupant]  of  said 
building,  did  on  the  day  and  year  aforesaid,  negligently  leave 
the  same  open  and  unprotected,  by  means  whereof  the  plaintiff, 
who  was  then  lawfully  in  said  building,  and  in  pursuit  of  his 
business  [or  otherwise  show  for  what  purpose,  and  by  what  right, 
the  plaintiff  was  there],  then  and  there  necessarily  and  care- 
fully passing  along  said  hall,  fell  through  said  hatchway, 

IV.  That  in  consequence  thereof  the  plaintiff  was  greatly 
injured,  and  became  sick  and  lame,  and  so  remained  for  a  long 

tinie  [or  so  still  remains],  and  was  during  the  space  of , 

prevented  from  attending  to  his  business  as ,  and 

w^as  compelled  to  expend dollars  for  medical  at- 
tendance [or  otherwise  state  injuries  to  plaintiff],  to  his  dam- 
age     dollars. 

[Demand  of  Judgment.] 

§    1868.   For  injuries  caus§d  by  vicious  dog. 

Form  No.   466. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18 .  . ,  at 

,  the  defendant  was  the  keeper  [or  owner]   of  a 

certain  vicious  dog,  which  was  accustomed  to  bite  mankind. 

TI.  That  the  said  defendant,  well  knowing  the  premises,  did 
wrongfully  and  injuriously  keep  and  harbor  the  said  vicious  dog, 
and  wrongfully  and  negligently  suffered  such  dog  to  go  at  large, 
without  being  properly  guarded  or  confined. 

TTI.  That  while  so  kept  as  aforesaid,  the  said  dog  did  bite 
and  greatly  wound  this  plaintiff  [state  the  particulars],  whereby 
this  plaintiff  borame  sick  and  sore  and  lame,  and  so  continued 
for  the  space  of  [six  months]  thence  next  follo^^^ng:  and  w^^s 
obliged  to  pay,  and  did  expend dollars  for  medical 


929  PERSONAL    INJURY,    BY   NEGLIGENCE.       §§  1869,  1870 

attendance  consequent  thereon,  and  was  prevented  during  all 
fcaid  months  of  sickness  from  attending  to  his  lawful  atfairs,  to 

his  damage dollars. 

[Demand  of  Judgment.] 

§  1869.  Averments  essential.  The  averment  that  he  was  of 
a  mischievous  or  ferocious  nature  is  simply  an  averment  that 
the  dog  would  bite  men,  that  he  was  accustomed  to  bite,  and 
this  is  best  evidenced  by  the  fact  that  he  did  bite  plaintiff. 
There  are  three  necessary  averments:  1.  That  the  dog  would 
bite  mankind;  2.  That  the  owner  or  keeper  knew  it;  and, 
3.  That  he  did  bite  plaintiff,  ^^^len  all  this  is  proved,  it  mat- 
ters not  how  carefully  the  dog  was  kept;  the  owner  or  keeper 
has  no  right  to  keep  such  a  dog  at  all.^'*^  Chitty  advises  counts 
averring  that  the  dog  was  of  a  ferocious  and  mischievous  nature, 
and  also  for  not  keeping  the  dog  properly  secured  or  fed,  as  the 
facts  may  be.^^^ 

§  1870.  Mischievous  animals.  The  gist  of  an  action  for 
keeping  a  mischievous  animal,  at  common  law,  is  the  keeping 
of  the  animal  after  knowledge  of  its  mischievous  propensities. 
And  a  declaration  is  sufficient  which  alleges  the  ferocity  of  the 
animal,  and  the  knowledge  of  the  defendant,  without  any  negli- 
gence or  want  of  care.^^® 

107  M'Caskill  v.  Elliot,  5  Strobh.  196;  53  Am.  Dec.  706;  but  the  cases 
of  Jones  v.  Perry,  2  Esp.  482;  and  C3ockerham  v.  Nixon,  11  Ired.  269. 
seem  to  make  a  distinction.  See  Muller  v.  McKesson,  7.'^  N.  Y.  195; 
29  Am.  Rop.  12.3;  Fake  v.  Addicks,  45  Minn.  :?7;  22  Am.  St.  Rep.  716: 
Woodbridpre  v.   Marks,  40  N.   Y.   Supp.   728. 

108  2  Chit.   PI.  597. 

109  Popplewell  V.  Pierce,  10  Cush.  509,  and  cases  there  clte("\;  see 
Finney  v.  Curtis,  78  Cal.  498.  It  is  unnecessary  to  allege  and  i  rovo 
scienter,  where  it  is  alleged  that  the  injury  was  done  while  the  animal 
was  negligently  permitted  by  the  defendant  to  trespass  upon  the 
plaintiff's  premises.  Mosicr  v.  Reale.  4."?  Fed.  Rep.  X>S,;  Shipley  v. 
Cok'lough,  81  Midi.  <;21;  21  Am.  St.  Rei*.  54<;;  Malono  v.  Knowlton. 
15  N.  Y.  Supp.  506.  A  complaint  in  an  action  to  recover  damages 
alleged  to  have  been  suffered  by  tlie  plainliff  from  tiie  bite  of  a 
vicious  dog  owned  and  kept  by  the  defcndMut,  in  conseciuence  of 
the  negligent  manner  in  which  the  defendant  kept  the  dog,  need 
not  negative  contri))Utory  negligence  on  the  part  of  the  plnlntiff. 
Boyd  V.  Oddous.  97  Oal.  510.  Contra.  Gregory  v.  Woodworth,  9:{ 
Iowa,  24<;.  In  an  action  for  ln.lTU-ies  inflicted  Ity  a  vlclotis  dog, 
such  damages  as  are  the  direct  and  obvious  results  of  the  injuries 
received  by  tlie  plaintiff.  Iruliidiiig  physicjil  pjiln  and  m(>ntal  an- 
guish, need  not  be  syiecially  allrt'ed  in  order  to  recover  compensa- 
tion therefor.  Robinson  v.  .Marino,  [',  Wash.  St  434;  28  Am.  St. 
Rep.  50. 

Vol.  T— 117 


§§  1871-187-1  roRMS  of  cojirLAixTs.  930 

§  1871.  Ownership,  ll,  is  not  necessary,  in  an  action  for 
damages  sustained  by  the  bite  of  a  dog,  for  the  plaintiff  to 
prove  that  the  defendant  OAvncd  the  dog.  It  is  sufficient  on 
this  point  for  the  plaintiff  to  prove  that  the  defendant  kept  the 
dog.^^o 

§   1872.  Scienter.     The  scienter  must  be  alleged  and  proved.^^^ 

$  1873.  Vicious  horse.  Defendant  negligently  let  his  horse 
go  loose  and  unattended  in  the  street  of  a  city,  where  the  horse 
kicked  the  plaintiff;  it  M'as  held  that  defendant  was  liable,  with- 
out proof  that  the  horse  was  vicious. ^^^ 

§    1874.   Against  physician  for  maltreatment. 
Form  No.   467. 

[Title.] 
The  plaintiff'  complains,  and  alleges: 

I.  That  the  defendant  is,  and  since  the   day  of 

J  18.  .,  has  been  a  physician,  and  that  the  plaintiff, 

at' ,  in  the  month  of  ,  18 .  . ,  em- 
ployed the  defendant  as  such,  to  cure  him  of  a  malady  from 
which  he  then  suffered,  for  compensation  to  be  paid  therefor, 
and  for  that  purpose  the  defendant  undertook,  as  a  physician, 
to  attend  and  cure  the  plaintiff. 

II.  That  the  defendant  entered  upon  such  employment,  but 
did  not  use  due  and  proper  care  or  skill  in  endeavoring  to  cure 
the  plaintiff  of  the  said  malady,  in  this:  the  defendant  did  not 
[here  state  what  defendant  failed  to  do  that  he  should  have 
done,  or  what  he  did  that  he  should  not  have  done]. 

no  Wilkinson  v.  Parrott,  32  Cal.  102:  and  see  Ficlcen  v.  Jones. 
28  id.  618;  Brice  v.  Bauer,  108  N.  Y.  428:  2  Am.  St.  Rep.  455; 
Manger  v.  Sliipman,  30  Neb.  3.")2;  Mitchell  v.  Chase,  87  Me.  172; 
Lunt  V.  Moore,  38  N.  Y.  Supp.  1095. 

iiU  M.  &  S.  238;  Smith  v.  Pelah,  2  Strange,  12fi4;  Yrooman  v. 
Lawyer,  13  Johns.  339;  Jones  v.  Perry,  2  Esp.  482;  Beck  v.  Dyson. 
4  Camp.  198;  Judge  v.  Cox,  1  Starkie,  285;  Blackman  v.  Simmons, 
3  C.  &  P.  138;  Mai-sh  v.  Jones,  21  Yt.  378;  52  Am.  Dec.  67;  Yan 
Leuven  v.  Lyke,  1  N.  Y.  515;  49  Am.  Dec.  .346;  see  §  1870,  ante- 
Tf  the  owner  of  an  animal  has  notice  that  its  disposition  is  such 
that  it  would  bo  likely  to  commit  an  injuiT  similar  to  the  one 
complained  of.  It  is  not  necessary  tliat  the  notice  be  of  injury 
actually  committed.  Bnce  v.  Bauer,  108  N.  Y.  428;  2  Am.  St.  Rep. 
4.54.  And  a  servant's  knowledge  of  the  animal's  yiciousness  is 
imputable  to  the  master.    Id. 

iianiokson  V.  McCoy,  39  N.  Y.  400;  see,  also,  Norris  v.  Kohler, 
41  id.  42. 


931  PEKSOXAL   INJURY,   BY   NEGLIGENCE,      §§    1875,1876 

III.  That  by  reason  of  the  several  premises,  the  plaintiff  was 
injured  in  his  health  and  constitution,  suffered  great  pain,  was 
weakened  in  body,  and  was  obliged  to  and  did  expend  the  sum 

of dollare,  in  endeavoring  to  be  cured  of  the  said 

sickness,  which  was  prolonged  and  increased  by  the  said  unskill- 
ful and  improper  conduct  of  the  defendant,  to  the  damage  of 

the  plaintiff  dollars. 

[Demand  of  Judgment.] 

i  1875.  Implied  promise.  The  employment  of  a  physician  in 
this  country  raises  an  implied  promise  to  pay  for  his  services. 
The  plaintiff  in  an  action  for  malpractice  may  allege  that  de- 
fendant was  a  physician,  and  as  such  was  called  on  by  the 
plaintiff,  and  undertook  as  such  to  administer  medicines,  etc. 
This  is  sufficient  to  raise  a  duty  of  skill  and  care  on  his  part.^^^ 
Evidence  of  reputed  skill  is  held  to  be  material.^^"* 

§   1876.  Against  surgeon,  for  malpractice. 
Form  No.  468. 
[Title.] 
The  plaintiff"  complains,  and  alleges: 

I.  That  on  the    day  of   ,  18 .  . ,  the 

plaintiff  by  accident  broke  his  leg. 

II.  That  he  then  employed  the  defendant,  who  is  a  surgeon, 
as  such  surgeon,  for  reasonable  reward  to  be  paid  therefor,  to 
set  and  heal  the  same. 

III.  That  the  defendant  so  negligently  and  unskillfully  con- 
ducted himself,  in  attempting  to  set  said  leg  of  the  plaintiff, 
that  [here  state  the  consequences,  as,  inflammation  ensued,  and 
the  plaintiff  was  compelled  to  have  his  leg  amputated]. 

TV.  That  by  reason  of  said  negligence  and  unskillfulii("ss  the 

plaintiff  was  made  sick  and  was  kept niontlis  from 

attending  to  his  business  as  [engineer],  and  was  compelled  to 

pay  and  did  pay dollars  expense  for  nursing,  and 

is  permanently  a  cripple;  to  his  damage dolhirs. 

[Demand  of  Judgment.] 

T\Tiere  a  physician  or  surgeon  takes  the  charge  of  a  patient, 
ho  assumes  an  implied  o1)ligation  to  treat  the  ease  witli  reason- 
able diligence,  carefulnc^';  and  skill.""     In  an  action  against  a 

113  Peek  V.  Martin,  17  Inrl.  11.'. 

114  Carponter  v.  Rlako.  r>()  N.  V.  (VX>. 

iinPottor  V.  Warner.  01  Penn.  St.  .302;  30  Am.  Rep.  008;  Ely  v. 
Wilhur,  40  X.  .T.   L.  OS.-,;  00  Am.   Rep.  008. 


g    ISTG  FOK.MS    OF    C'UMI'LAINTS.  d'oi 

physiciuu  I'or  malpractice,  the  plaiutilV  may  elect  to  sue  on  con- 
tract, aiid  thus  waive  the  tort."^'  A  complaint  alleging  that 
the  plaintill:,  having  injured  his  right  slioulder  and  arm,  "  the 
defendant,  being  then  a  praeticiug  })hysician  and  surgeon,  as 
such  undertook  faithfully,  skillfully,  and  diligently  to  treat 
and  set,  and  endeavor  to  cure  and  heal  said  arm  and  shoulder," 
followed  by  proper  averments  as  to  his  lack  of  skill,  negligence 
etc.,  sets  out  an  action  in  tort,  and  not  on  contract.^^'^  Partners 
in  the  practice  of  medicine  are  all  liable  for  an  injury  to  a 
patient  resulting  from  the  negligence,  either  of  omission  or 
commission,  of  any  one  of  the  partners  Avithin  the  scope  of 
their  partnership  business.  But  for  an  injui^  resulting  from 
the  act  of  one  partner  outside  of  the  common  business,  the 
offending  partner  is  alone  responsible.^^® 

n«Lane  v.  Boicourt.  128  Ind.  420;  25  Am.  St.  Rep.  442. 

117  De  Hart  v.  Haun,  126  Ind.  378. 

118  Hyrne  v.  Erwin.  23-  S.  C.  226;  55  Am.  Rep.  15;  and  see  Hess 
V.  Lowrey,  122  Ind.  225;  17  Am.  St.  Rep.  355. 


CHAPTER  YI. 

VIOLATION   OF   I'EESONAL   EIGHTS. 

§   1877.   Against  officers  of  an  election,  for  refusing  plaintiff's 
vote. 

Form  No.  469. 

[Title.] 
The  plaintifE  complains,  and  alleges: 

I.  That  the  defendants  were  the  inspectors  and  judges  of  an 

election  duly  held  at ,  in  and  for  the 

precinct,  in  the  city  of ,  on  the day  of 

,  18..,  for  the  purpose  of  electing  [state  what 

officers],  and  being  duly  appointed  and  qualified  as  such  in- 
spectors and  Judges,  the  defendants  had  the  polls  open  for  said 

election  at  Xo street   [or  at  the  schoolhouse] 

in  said  town  [or  city]  between  the  hours  of and 

on  the  day  aforesaid. 

II.  That  the  plaintiff  then  was,  and  for  the  space  of 

months  had  been  a  citizen  of  the  state  of ,  and 

then  was,  and  for  the  space  of days  had  been,  a 

resident  in  said  town  [or  ward,  or  otherwise,  according  to  the 
statute],  and  wa.s  a  legal  elector  at  said  election  [or  that  the 
plaintiff  was  registered  in  the  grand  register  of  the  city  and 

county  of ,  and  was  enrolled  on  the  poll  lists  of 

the  said precinct]. 

III.  That  as  such  elector,  the  plaintiff,  while  the  polls  were 
so  open,  duly  offered  to  the  defendants  his  vote  or  ballot  for 
the  election  of  [insert  what  officers  ho  offered  to  vote  for,  as 
sheriff,  etc.],  in  and  for  said  town,  and  requested  them  to  re- 
ceive the  same. 

TV.  That  the  defendants,  not  regarding  their  duly,  wrong- 
fully refused  to  receive  or  deposit  the  same,  although  they  and 
f'ach  of  them  then  well  know  ho  was  a  qualified  voter,  whereby 
he  was  deprived  of  his  vote  at  said  election,  to  his  damage 

dollars. 

[Demand  of  Judgment.] 


§§    1ST8-1SS1  FORMS    OF   COMFLAINTS.  931 

§  1878.  Facts  must  be  alleged,  lu  an  action  for  refusing 
plaintiir's  vote,  the  particular  facts  upon  which  plaintiffs  right 
to  vote  depends,  must  be  alleged.^ 

§  1879.  Malice.     The  averment  of  malice  is  unnecessary.^ 

$    1880.   For  criminal  conversation. 
Form  No.  470. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  A.  B.  is,  and  at  the  times  hereinafter  mentioned  was, 
the  wife  of  the  plaintiff. 

II.  That  on  or  about  the   day  of   , 

18. .  [the  day  or  about  the  day  the  first  act  of  adultery  can  be 
proved],  and  on  other  days  after  that  day,  defendant,  wrongfully 
contriving  and  intending  to  injure  the  plaintiff,  and  to  deprive 
him  of  the  comfort,  society,  aid,  and  assistance  of  his  wife 
[forcibly  and  without  the  consent  of  the  said  A.  B.],  wickedly, 
willfully,  and  maliciously  debauched  and  carnally  knew  the 
said  A.  B.,  without  the  privity  or  consent  of  the  plaintiff. 

III.  That  by  means  of  the  premises,  the  affection  which  the 
said  A.  B.,  therefore,  had  for  the  plaintiff  was  alienated  and 
destroyed,  and  the  plaintiff  was  deprived  of  the  comfort,  society, 
aid,  and  assistance  which  he  otherwise  would  have  had  from 
the  said  A.  B.,  and  has  suffered  great  distress  of  body  and  mind, 
to  his  great  damage dollars. 

[Demand  of  Judgment.] 

S  1881.  Character  of  action.  An  action  by  the  husband,  for 
crim.  con.,  is  an  action  for  injury  to  the  person.^ 

1  Curry  v.  Cabliss,  37  Mo.  330.  Petition  sufficiently  stating  cause 
of  action^to  compel  admission  of  pupils  to  school.  See  Marion  v. 
Territory,  1  Okl.  210.  A  complaint  by  a  person  claiming  to  be 
entitled  to  an  office  as  an  lionorably  discharged  soldier  Is  sufficient 
if  it  shows  his  eligibility  from  his  position  on  the  civil  service  list, 
and  his  military  services,  and  need  not  statt^  that  the  incumbent 
is  not  an  honorably  discharged  soldier  or  sailor.  People  v.  Tobey, 
40  N.  Y.  Supp.  .577. 

2  Jeffries  V.  Ankeny,  11  Ohio,  372;  Thacker  v.  Hawk,  id.  376; 
Lincoln  v.  Hapgood,  11  Mass.  3.50;  Capen,  v.  Foster,  12  Pick.  485; 
23  Am.   Dec.  032;  Osgood  v.  Bradloy.  7  Me.  411. 

3  1  Chit.  PI.  137;  2  id.  205;  2  Kent,  129;  3  Blackst.  Com.  138; 
Dela mater  v.  Rnsscll,  4  How.  Pr.  234;  S.  C,  2  Code  R.  147.  Where 
the  evidence  fails  to  show  that  the  wife  was  actually  seduced,  but 


935  VIOLATION   OF   PEKSONAL   EIGHTS.      §§    1882-lS84a 

§   1882.  Contriving  and  intending.      The    intention    is    ma- 
terial.* 

i  1883.  Marriage.       In  an  action  for  criminal  conversation, 
the  plaintitt'  must  prove  an  actual  marriage.^ 

§    1884.   For  enticing  away  plaintiff's  wife. 

Form  No.  471. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  A.  B.  is,  and  at  the  times  hereinafter  mentioned  was, 
the  wife  of  the  plaintiff. 

II.  That  on  or  about  the   day  of   , 

18..,  while  the  plaintiff'  was  living  and  cohabiting  with  and 

supporting  her,  at    ,  and  while  they  were  living 

together  happily  as  man  and  wife,  the  defendant,  wrongfully 
contriving  and  intending  to  injure  the  plaintiff,  and  to  deprive 
him  of  her  comfort,  society,  and  assistance,  maliciously  enticed 

her  away  from  the  plaintiff's  and  her  then  residence  in , 

to  a  separate  residence  in ,  and  has  ever  since  there 

detained  and  harbored  her,  against  the  consent  of  the  plaintiff. 

III.  That  by  reason  of  the  premises  the  plaintiff  has  been 
and  still  is  wrongfully  deprived,  by  the  defendant  of  tbo  com- 
fort, society,  and  aid  of  his  said  wife,  and  has  suffered  great  dis- 
tress of  body  and  mind  in  consequence  thereof,  to  his  damage 
dollars. 

[Demand  of  Judgment.]  ® 

§  1884a.  The  same  —  allegations.  It  is  sufficient  in  a  Com- 
plaint for  enticing  away  the  plaintiff's  wife,  or  for  seduction, 
to  allege  the  ultimate  facts,  witbont  a  statement  of  the  acts 
made  use  of  to  accomplish  the  illegal  pur])nse.'^  By  tbe  decided 
weight  of  authority,  it  is  now  held  tliat  a  married  woman  may 
maintain  an  action  against  nnntlicr  woman   for  alienating  Ikt 

tli.'it  h<T  f.-ill  was  vatli.T  the  n-siilt  of  li.-r  (iwii  lict>ntiousnpss. 
there  ran  l)e  no  recovciT  of  (laiiiajres.  for  an  actual  sednelion. 
nngjrlns  V.  Tond.   r.R   111.   App.  .''>8. 

4  Tljitflieson  v.  Peek.  .'  .Tolms.  100. 

n^forris  v.  Millfr.  4  I?niT.  'H^rrr.  Teake's  Law  Kv.  :'.00;  TM.il.  on 
Ev.  (Ttli  ed.)  20(;:  S.'hv.  X.  I".  14.  Ki:  soo,  jilso.  '1  V.\\\\.  V\.  i\\?,.  note  f. 

«For  a  form  nearly  similar.  r<-..  Sclieri.f  v.  Sz.'v.lpczky.  1   Abb.  Pr. 

?.no. 

TFrenrb  v.  Doanr.  H)  r.,!.  .".ul;  Williams  v.  Williams,  liO  id.  51; 
HodRes  V.  Rales.  lo2  Tnd.  404. 


{^§  i&85,  1880      FORMS  OF  COMPLAINTS.  93G 

husband's  ailoctiouij,  when  Ihei-c  is  a  statute  enabling  her  to 
sue.*  The  action  is  based  upon  the  loss  oi'  the  consortium  or 
conjugal  society  of  the  husband;"  and  allegation  and  proof  of 
adultery  is  not  necessary  to  sustain  the  action.^" 

§  188o.  Allegation  that  defendant  knew.  In  an  action  for 
debauching  a  wife  or  servant,  it  is  not  necessary  to  allege  or 
prove  tliat  the  tlefendant  knew  that  the  female  was  the  wife  or 
servant  of  the  plaintilf;  though  in  a.n  action  for  seducing  away 
or  harboring  a  wife  or  servant,  such  allegation  and  evidence 
are  necessary. ^^ 

S   1886.  Debauching  a  daughter. 

For)ii  No.  472. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  said  defendant,  unjustly  intending  to  injure  said 
plaintiff,  and  to  deprive  him  of  the  services  and  assistance  of 

the  daughter  and  servant  of  said  plaintiff,  did  on  the 

day  of ,  18.  .,  and  on  divers  other  days  between 

that  day  and  the  commencement  of  this  action,  debauch  and 

carnally  know  the  said  ,  then  and  there,  before 

and  since,  the  daughter  and  servant  of  said  plaintiff,  whereby 

the  said   became  pregnant  and  sick  with  cliild, 

and  so  remained  for  a  long  space  of  time,  to-wit,  for  the  space  of 
nine  months,  thence  next  following;  at  the  expiration  whereof 

the  said was  delivered  of  the  child  with  which  she 

was  pregnant,  as  aforesaid. 

II.  That  by  means  of  the  premises,  the  said  , 

for  a  long  space  of  time,  to-wit  [one  year]  Avas  unable  to  do 
the  needful  business  of  the  said  plaintiff,  he,  the  said  plain- 

8  Bennett  v.  Bennett,  41  Hun.  G40;  IIG  N.  Y.  584;  Warner  v.  Mil- 
ler, 17  Abb.  N.  O.  221;  Seaver  v.  Adams,  66  N.  H.  142;  Warren  v. 
Warren,  89  Mich.  12?,;  Foot  v.  Card,  .58  Conn.  1;  18  Am.  St.  Kep. 
258. 

9  Bucket  V.  Su8S,  28  Abb.  N.  C.  21;  Adams  v.  Main  (Ind.  App.),  29 
N.  E.  Rep.  792. 

10  Id.;  HiRliam  v.  Yanosdol,  101  Ind.  100.  Tliat  a  wife  can  not 
maintain  an  action  of  crim.  con.  against  anotlier  woman,  see  Doe 
V.  Roe,  82  Me.  50,3;  17  Am.  St.  Rep.  499. 

11  Fores  v.  Wilson,  Peake  N.  P.  C.  5.5;  Peake's  Law  of  Evidence, 
1.34;  Winsmore  v.  Greenback,  Wille.s,  .577;  see  2  Chit.  PI.  642.  note 
e;  see  Honnance  v.  James,  32  How.  Pr.  142;  Bucket  v.  Suss,  28 
Abb.  N.  C.  21. 


937  VIOLATION    OF    PERSONAL    RIGHTS.       §§    1887-1891 

tiff,  so  being  the  father  and  master  of  the  said , 

and  the  said  plaintiff  lost  the  services  of  the  said 

during  all  that  time;  and  the  said  plaintiff  was  put  to  great  ex- 
pense, and  did  pay  out  a  large  sum,  to-wit,  the  sum  of 

dollars,  in  and  about  the  nursing  and  taking  care  of  the  said 

,  his  daughter  and  servant,  and  in  and  about  the 

delivery  of  said  child,  to  his  damage  in  the  sum  of 

dollars. 

[Demand  of  Judgment.] 

S  1887.  Connivance.  The  connivance  of  the  father  in  the 
act  of  seduction  will  wholly  bar  his  action,  but  where  the  defense 
is  omitted  to  be  pleaded,  it  will  be  waived. ^^ 

§  1888.  Daughter  temporarily  absent.  This  action  is  main- 
tainable, though  the  daughter  be  temporarily  absent  at  the  time 
of  seduction. ^^ 

I  1889.  Debauching  and  beating  a  daughter.  A  parent,  in 
that  character  merely,  can  not  support  an  action  for  debaucliing 
or  beating  his  daughter,  which  is  only  sustainable  in  respect 
to  the  supposed  loss  of  service,  some  slight  evidence  of  which 
must  in  general  be  adduced.^* 

§  1890.  Distress  of  body  and  mind.  The  fact  that  the  plain- 
tiff has  suffered  great  distress  of  body  and  mind  is  a  good 
ground  of  damages. ^'^ 

§  1891.  Father,  action  by.  A  father  may  maintain  an  ac- 
tion for  the  seduction  of  liis  daughter,  under  twenty-one  years 
of  age,  although  she  was  not  living  with  him  at  the  time,  if  he 
has  not  by  his  own  act  destroyed  his  right  to  control  her  serv- 
ices.^® So.  for  that  of  a  daughter  over  twenty-one,  and  not  liv- 
ing with  him,  if  he  thereby  loses  actual  senioos  due  to  him; 
and  sers'ices  rendered  will  be  presumed  to  be  due  if  he  continues 
to  exercise  authority  over  her,  and  she  to  submit.^^ 

12  Travis  v.  Barper,  24   T'.nrl>.  c,^■\. 

i3Llpe  v.  Eisonlerd,  .'52  N.  Y.  22f»:  soo  Pal.  Code  Civ.  Pro..  §  .375. 

14  T)  East.  4.-"»:  .'-►  T.  K.  ?,r>();  soe  2  Cliit.  V\.  04.'{.  note  D;  Wlilto  v. 
Nellis.  .31  N.  Y.  iorr,  8«  Am.  Dor.  282. 

if'DaIn   V.  "VVyfofr,   7  N.  Y.   im. 

ifl  Greenwood  v.  Creenwood.  2K  Md.  .V,f). 

17  Sutton  v.  Huffman,  32  N.  .T.  L.  r>8:  LIpe  v.  Elsonlerd,  32  N.  Y. 
229. 

118 


§§  1892-1896  FORMS  of  complaints.  938 

§  1892.  Female  seduced  can  not  maintain  action.  At  common 
law  the  iViuale  sodueod  cau  not  maintain  an  action  for  her  own 
eeductiou.^^  But  by  section  374,  California  Code  of  Civil  Pro- 
cedure, an  unmarried  female  may  maintain  the  action.^®  Under 
a  similar  statute  in  Indiana  it  was  held  that  the  complaint 
must  allege  that  the  plaintiif  was  unmarried.^*^  A  seduction, 
where  it  exists,  is  frequently  alleged  in  a  suit  for  breach  of 
promise  of  marriage  in  aggravation  of  damages,  biit  not  as  a 
separate  cause  of  action.  It  is  doubtful  if  breach  of  promise  of 
marriage  and  seduction  could  be  Joined  as  distinct  causes  of 
action  even  under  a  statute  authorizing  the  female  to  sue  for 
seduction,  as  the  one  arises  from  contract,  and  the  other  from 
tort. 

§  1893.  Full  age.  A  father  may  maintain  an  action  for  se- 
duction of  his  daughter  who  resides  with  him,  and  performs 
domestic  services  in  return  for  support,  notwithstanding  she  is 
of  full  age  and  that  no  express  agreement  exists  for  services.^^ 

S  1894.  Gist  of  action.  The  loss  of  service  is  the  gist  of 
tlie  action,  and  tlie  master  can  alone  sustain  the  action.  If  the 
daughter  is  not  living  with  her  father,  he  can  not  sue  for  se- 
duction.22 

§  1895.  Minor.  As  regards  a  minor,  it  seems  that  one  stand- 
in  in  loco  parentis  has  a  right  to  maintain  an  action  for  seduc- 
tion.^ 

§  1896.  Mother,  action  by.  Under  statutory  provision,  such 
action  may  be  maintained  by  a  mother  keeping  a  boarding-house 
on  her  separate  account,  though  the  father  be  living  at  tlie 
time,  if  the  father  has  abandoned  his  family.^ 

18  Hamilton  v.  Lomax,  26  Barb.  61,5;  S.  O.,  6  Abb.  Pr.  142. 

19  See  ante,  §  157;  see,  also,  Koenig  v.  Nott,  8  Abb.  Pr.  3&4. 

20  Thompson    v.    Young,    51    Ind.    599;    see    form    No.    474,    post 
212  T.  R.  166;  id.  4;  Irwin  v.  Dearman,  11  East.  2.3;  Manvell  v 

Thompson,  2  Car.  &  P.  303;  Moran  v.  Dawes,  4  Cow.  412;  Lipe  v 
Eisenlerd,  32  N.  Y.  229;  and  see  Beaudette  v.  Ga^ne,  8/  Me.  534. 

22  Briggs  V.  Evans,  5  Ired.  16;  Hewit  v.  Prime,  21  Wend.  79 
Martin  v.  Payne,  9  Johns.  387;  6  Am.  Dec.  288;  Applegate  v 
Ruble,  2  A.  K.  Marsli.  128;  Gillet  v.  Mead.  7  Wend.  193;  22  Am.  Dec, 
578;  Clarli  v.  Fitcli.  2  Wend.  4.59;  20  Am.  Dec.  639. 

23  Hartley  v.  Richtmeyer,  4  N.  Y.  38  (43);  53  Am.  Dec.  338;  Bracy 
V.  Kibbe,  31  Barb.  273. 

24  Badgley  v.  Decker,  44  Barb.  577;  see,  also,  ante,  §  157,  and  §  375, 
Cal.  CJode  Civ.  Pro. 


939  yiOLATION    OF   PERSONAL    RIGHTS.      §§    1897-1900 

§  1897.  Nature  of  action.  The  action  is  not  maintainable 
by  a  parent,  as  such,  but  as  a  master  entitled  to  services  of 
child.2« 

§  1898.  Stepfather.  A  stepfather  can  not  sue  for  the  se- 
duction of  his  stepdaughter  while  living  in  the  service  of 
another.^® 

§   1899.   For  seduction  of  plaintiff's  daughter  or  servant. 
Form  No.  473. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  hereinafter  mentioned,  one  A.  B.  was  the- 
servant  [and  daughter]  of  the  plaintiff. 

II.  That  on  the    day  of    ,   18..,  at 

,  the  defendant,  well  knowing  the  said  A.  B.  to  be 

the  servant  [and  daughter]  of  the  plaintiff,  and  wrongfully  con- 
triving and  intending  to  injure  the  plaintiff,  and  to  deprive- 
him  of  her  assistance  and  service,  did  wickedly  and  maliciously, 
and  without  the  privity  or  consent  of  the  plaintiff  [forcibly  and 
against  the  will  of  the  said  A.  B.,  abduct  her,  or  entice  and 
persuade  the  said  A.  B.  to  leave  the  residence  and  service  of 
this  plaintiff,  and  did]  then  and  there  debauch  and  carnally 
know  her. 

III.  That  by  reason  of  the  premises  the  said  A.  B.  became 
pregnant  and  sick  with  child,  and  so  remained  for  the  space  of 

montlis;  that  during  that  time  she  was  unal)le 

to  attend  to  tlie  duties  of  her  service,  and  the  plaintiff  was 
thereby  deprived  of  her  service,  and  was  obliged  to,  and  actually 

did,  expend dollars  in  nursing  and  taking  care  of 

her  in  her  said  pregnancy  and  sickness,  and  was  otherwise 
greatly  injured,  to  his  damage   dollars.^^ 

[Demand  or  Ji'DfiMENT.] 

§    1900.   For  seduction,  by  female  seduced. 
Form  No.  474. 

[Title.] 
Tlio  plaintiff  complains,  and  alleges: 
T.  Tliat  at  the  time  of  ilie  commission  of  llio  griovan.-es  licre- 

2r.  Wliitc  V.  Nellis.  :'.l    N.  V.  4<r>:  KK  Am.  Dff.  2.S2. 

2R  Hartley  v.  Klclitineyer,  4  N.  Y.  I'.S;  •".:{  Am.  !)<'<■.  :!."..S;  Bracy  v. 
Kihlx'.  ?A  Barb.  21?,. 

27  Tliia  Is  from  Abboft's  I'drms.  S<m-  Krc-aK  v.  Antliua,  2  Ind.  App. 
482;  Mcllvain  v.  Emerj'.  B8  lud.  208. 


§  1901  FORMS  OF  COMPLAINTS.  940 

inafter  mentioned,  the  plaintil!  was  and  still  is  an  unmarried 
woman,  and  at  all  times  prior  thereto  had  been  chaste  and 
virtuous. 

II.  That  on  the   day  of    ,   18..,  at 

,  the  defendant,  with  force  and  violence,  made  an 

indecent  assault  upon  the  plaintitf  and  then  and  tliere  wickedly 
seduced,  debauched  and  carnally  knew  her,  whereby  she  be- 
came sick  and  pregnant  with  child,  and  so  remained  for  a  long 
space  of  time,  to-wit,  for  the  space  of  nine  months;  at  the 

expiration  of  which  time,  and  on  the day  of , 

18..,  she  was  delivered  of  the  child  of  wdiich  she  was  so 
pregnant. 

III.  That  by  reason  of  the  premises,  and  in  consequence  of 
the  seduction  aforesaid,  the  plaintiff  has  suffered  greatly  in 
her  health,  and  became  sick,  and  was  prevented  for  a  long  space 

of  time,  to-wit,  for  the  space  of   months,  from 

attending  to  her  ordinary  business  and  affairs,  and  was  greatly 
afflicted  in  body  and  mind,  and  has  been  put  to  great  expense 
for  medical  attendance  and  nursing,  and  has  been  otherwise 
greatly  injured,  to  her  damage dollars. 

[Demand  of  Judgment.] 

§  1901.  statute  of  Limitations.  The  Statute  of  Limitations 
does  not  commence  to  run  against  the  right  of  action  for  the 
seduction  of  a  minor  until  she  attains  her  majority.^ 

28  Morrell  v.  Morgan,  65  Cal.  575. 


FORMS  OF  COMPLAINTS. 


SUBDIVISION  FIFTH. 

FOR   DAMAGES   UrOX   WRONGS. 


PART  SECOND  —  FOR   INJURIES  TO   PROPERTY. 

CHAPTER  I. 

BAILEES. 
§  1902.  Against  a  receiptor. 

Form  No.   475. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18..,  the 

defendant  received  from  the  plaintiff  certain  goods,  and  de- 
fendant thereupon  gave  to  the  plaintiff  a  receipt  for  the  same, 
of  which  the  following  is  a  copy  [copy  receipt] • 

II.  That  on  the  day  of  ,  18.  .,  the 

plaintiff  demanded  of  the  defendant  that  he  deliver  said  goods, 

but  he  refused  to  do  so,  to  the  plaintiff's  damage 

dollars. 

[Demand  of  Judgment.]^ 

§  1903.  Bailees,  who  are.  The  term  bailee  is  not  used 
in  the  limited  sense  "  to  keep,  to  transfer,  or  to  deliver,"  as 
in  section  ?1  of  the  act  of  1850,  concerning  crimes  and  punish- 
ments.^ WTien  a  redomptionor  pays  an  excess  »f  money  to  the 
sheriff,  the  sheriff  is  bailee  of  tbc  rcdcmptioner  as  to  the 
excess,  who  may  recover  it  back  on  demand,  it  not  having  been 
paid  over  to  tlio  redemptioncc.^ 

1  For  the  provisions  of  tlio  Civil  Po^lo  of  Cnllfonilii  on  the  con- 
tract of  rloposlt,  see  S8  ISl.'MSTH,  inrMislvf. 

2  People  v.  FokkI,  10  f'iil.  ♦MIO;  r>vcnMillng  rMplo  v.  Cohen,  8 
id.  42. 

8  McMillan  v.  VIscli.r.  11  r.-il.  2:'.2. 


§^  r.HU-1907  FORMS    OK    COM  PLAT  NTS.  042 

§  1904.  Bailor,  liability  of.  A  man  may  steal  his  own 
property  if  by  taking  it  his  intent  be  to  eharge  the  bailee 
with  the  property,  and  thus  impose  a  loss  on  liim.'*  Where 
property  is  not  put  in  a  bailee's  charge  by  the  owner,  but  comes 
into  his  possession  through  the  owner's  neglect,  and  where  he 
may  not  know  to  whom  it  belongs  or  by  whom  it  was  left, 
he  should  not  be  responsible  for  delivering  it  to  the  wrong 
person  if  he  has  exercised  all  the  care  that  could  be  reasonably 
expected  of  him  under  the  circumstances.^  A  depositary  with 
whom  goods  have  been  stored  by  one  confessedly  acting  as  an 
agent  must  deliver  them  to  the  principal  on  his  demand,  not- 
withstanding the  agent  forbids  him  to  do  so.^ 

§  1905.  What  property  may  be  pledged.  Personal  prop- 
erty may  be  pledged,  mortgaged,  hypothecated,  or  placed  in 
trust  upon  such  terms  and  conditions  as  the  parties  may  agree 
upon,  and  courts  of  law  will  be  governed  by  the  language  of 
the  contract  in  each  particular  case.'^  Under  the  law  of  Louisi- 
ana, there  are  two  kinds  of  pledges,  the  pawn  and  the  anti- 
chresis. A  thing  is  said  to  be  pawned  when  a  movable  is  given 
as  a  security;  the  antichresis  consists  of  movable  objects.*  But 
property  pledged  to  the  keeper  of  a  brothel  to  secure  payment 
for  wine,  etc.,  consumed  in  a  debauch  in  said  brothel,  can  not 
be  recovered  of  the  pledgee  by  the  pledgor.® 

§  1906.  Pledgee's  responsibility.  A  pledge  is  a  bailment 
which  is  reciprocally  beneficial  to  both  parties,  and  therefore 
the  Jaw  requires  of  the  pledgee  the  exercise  of  ordinary  dili- 
gence in  the  custody  or  care  of  the  goods  pledged,  and  he 
is  held  responsible  for  ordinary  negligence. ^^ 

§  1907.  Power  to  sell  pledge.  A  party  depositing  secu- 
rities for  securing  the   payment   of   debt,   or  advances   made 

4  People  V.  Stone,  16  Cal.  369. 

B  Morris  v.  Third  Ave.  R.  R.  Co.,  1  Daly,  202. 

e  Ball  V.  Liney,  44  Barb.  505. 

7  Hyatt  V.  Argenti,  3  Cal.  151.  For  the  provisions  of  the  California 
Civil  Code  on  the  contract  of  pledge,  see  §§  2980-3011,  inclusive. 

8  Livingston  v.  Story,  11  Pet.  351. 

8  Taylor  v.  Chester,  L.  R.,  4  Q.  B,  309.  One  personal  obligation 
can  not  be  pledged  to  secure  another  personal  obligation  of  the 
same  person.     International  Trust  Co.  y.  Cattle  Co.,  3  Wyo.  803. 

lost  Losky  V.  Davidson,  6  Cal.  643;  Mui-phy  v.  Bartsch,  2  Idaho, 
603. 


943  BAILEES.  §§  1908,  1909 

thereon,  may  agree  that  they  shall  be  sold  at  the  option  or 
pleasure  of  the  creditor.^^  A  sale  made  under  such  authority 
is  good  without  notice  to  the  plaintiff  of  the  time  and  place 
of  such  sale  or  previous  demand  of  payment;  but  if  no  such 
agreement  be  made,  the  sale  can  be  made  only  on  notice  to 
the  pledgor.^^  xVnd  if  not  otherwise  agreed,  the  sale  must  be 
at  public  auction.^^  In  California,  the  pledgee  is  not  author- 
ized to  sell  the  pledge  without  calling  on  the  pledgor  to  redeem, 
and  giving  him  reasonable  notice  of  his  intention  to  sell.^^ 
And  where,  without  calling  on  the  pledgor  to  redeem,  the 
pledgee  sold  the  pledge  (a  chose  in  action),  it  was  a  conversion 
of  the  pledge,  and  plaintiff  might  recover  its  value  at  the  time 
of  its  conversion  in  excess  of  the  demand  secured  by  the 
pledge. ^°  The  notice  of  the  sale  of  the  pledge  should  apprise 
the  pledgor  of  the  time  and  place  of  sale;  as  the  object  is  not 
that  the  notice  should  operate  as  a  demand,  but  that  the 
pledgor  should  be  enabled  to  bid  at  the  sale,  or  procure  a  good 
bid  to  be  made,  etc.^*' 

§  1908.  Demand.  When  a  bailee  disclaims  his  relation  to 
the  bailor,  he  can  not  claim  the  right  to  require  a  demand  for 
the  money  before  interest  is  charged  against  him.^'^ 

§  1909.  Lien  on  goods.  A  common  carrier  or  innkeeper 
has  a  lien  on  the  pruperty  for  his  reasonable  and  just  charges 
therefor,  but  one  who  merely  provides  food,  as  an  agistor  or  a 
livery-stable  keeper,  has,  in  general,  no  lien  on  the  property 
unless  there  is  a  special  agreement  to  that  effect.^*     But  by 

n  Hyatt  v.  Argentl,  3  Cal.  151. 

12  Hart  V.  Barton,  7  J.  J.  Marsh.  322;  Stearns  v.  Marsh,  4  Don. 
227;  47  Am.  Dee.  248;  2  Kent's  Com.  749;  De  Lisle  v.  Prlostumn, 
1  Brown  (Penn.),  176;  Hart  v.  Ten  Eyck,  2  .Johns.  Ch.  62. 

13  Castello  v.  City  Bank,  1  N.  Y.  Log.  Obs.  2.5;  Jones  v.  Thurmod's 
Flelrs,  .5  Tex.  318;  IL-mkln  v.  McCulkMifrh,  12  Barb.  103;  Morjian  v. 
Dod,  3  f>)l.  551;  McDowell  v.  Chk-aKO  Steel  Works,  124  111.  401; 
7  Am.  St.  Hep.  .381. 

14  Gay  V.  Moss,  .-M  Cal.  125. 

15  Id.     See  Cal.  Civil  C-ckIo,  §  .3^»01  ot  seq. 

16  See  Brown  v.  Ward,  3  Duer,  OfiO;  Castollo  v.  City  Bank,  1  N. 
Y.  Lpr.  01)s.  25;  Willouphby  v.  Comstock,  3  Hill.  .'?S!l:  Tucker  v. 
Wilson,  1  r.  Wnis.  261;  lyowls  v.  Graham.  4  Abb.  Vv.  lof>.  See 
Cal.  Civil  Code,  §  3f)01  et  se(i. 

i7Dickin.Hon  v.  f)w<'n,  11   Cnl.  71. 

i«  Lewis  V.  Tyler.  2.''.  Cnl.  .".<M.  .Airlsfor's  Hen  under  California 
Code,  see  Lowe  v.  Woods,  100  Cal.  4^)S;  .38  Am.  St.  Kep.  301. 


§§  1010-1014  FORMS    OF    (COMPLAINTS.  944 

section  3051,  California  Civil  Code,  as  amended  in  1878,  stable 
keepers  and  those  who  pasture  stock  have  a  lien. 

§  1910.  Note  as  security.  When  a  promissory  note  is 
assigned  as  collateral  security  for  a  debt,  and  no  special  con- 
tract is  made,  the  contract  rights,  duties,  and  liabilities  are  the 
same  as  in  the  case  of  the  assignment  of  a  note  for  value,  except 
in  one  respect,  which  is  that  the  assignee  undertakes  to  pay  to 
the  assignor  the  overplus  that  he  may  receive  on  the  collateral 
after  the  satisfaction  of  the  principal  debt.-'® 

§    1911.      Redemption      of      mining'      stock      pledged.     The 

pledgee  of  mining  stocks  upon  the  redemption  of  the  pledge 
is  not  obliged  to  return  the  identical  certificates  pledged,  but 
may  return  similar  certificates.  Nor  does  the  fact  that  the 
pledgee  has  sold  the  particular  certificates  pledged,  render  him 
liable  for  a  conversion,  provided  he  restores  similar  certificates 
to  the  pledgor,  on  redemption,  and  has  at  all  times  been  ready 
to  do  so.^^ 

§  1912.  Title  to  pledged  property.  A  pledge  does  not 
vest  the  title  in  the  pledgee.  He  has  only  a  special  property  in 
or  lien  on  the  chattel  pledged,  and  if  the  pledge  is  not  redeemed 
by  the  time  limited  it  retains  the  character  of  a  pledge  still. ^' 

§  1913.  Use  of  money.  An  attaching  creditor  of  the 
bailee,  levying  on  the  money  in  the  hands  of  a  stockholder 
with  whom  it  had  been  deposited  by  the  bailee,  can  not  claim 
that  the  bailor  is  estopped  by  having  allowed  the  bailee  to  use 
the  money  in  his  own  name,  w^hen  the  specific  money  was  in 
question  and  could  be  distinguished.^^ 

§  1914.  For  injury  to  pledge. 

Form  No.  476. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of    ,  ^^..,  the 

plaintiff    delivered    to  the  defendant    [describe  articles],  the 

lODonohue  v.  Gamble,  38  Cal.  .S.54;  99  Am.  Dec.  441. 

20  Thompson  v.  Toland,  48  Cal.  99. 

21  Iloyland  v.  Badger,  3.5  Cal.  404;  Cross  v.  Canal  Co.,  73  Gal.  302; 
2  Am.  St.  Rep.  808. 

22 Hardy  v.  Hunt,  11  Cal.  343;  70  Am.  Dec.  787. 


945  BAILEES.  §§  1915,  1916 

property  of  this  plaintiff,  of  the  value  of .lollars, 

as  a  pledge  to  the  defendant  to  secure  the  sum  of 

dollars,  theretofore  loaned  by  the  defendant  to  the  plaintiff, 
which  articles  the  defendant  received  for  that  purpose,  and 
agreed  with  the  plaintiff  to  take  good  care  of  the  same  until 
they  should  be  redeemed  by  the  plaintiff. 

II.  That  the  defendant  so  negligently  conducted  in  respect 
to  said  articles,  and  so  carelessly  used  the  same,  that  they 
became,  by  reason  of  his  negligence  and  carelessness,  greatly 
damaged   [state  injury],  and  were  rendered  of  small  value  to 

the  plaintiff,  to  his  damage   dollars. 

[Demand  of  Judgment.] 

§    1915.   For  loss   of   pledge. 

Form  No.   4J7. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18..,   at 

,  the  plaintiff'  delivered  to  the  defendant  [de- 
scribe articles],  the  property  of  this  plaintiff,  of  the  value  of 

dollars,  by  way  of  pledge  to  the  defendant,  to 

secure  the  sum  of   dollars  theretofore  loaned  by 

the  defendant  to  the  plaintitf,  which  articles  the  defendant 
received  for  that  purpose,  and  agreed  with  the  ])laintilT  to  take 
good  care  of  the  same  until  they  should  be  redeemed  by  the 
plaintiff. 

II.  That  the  defendant  luis  failed  to  I'ulliJl  said  nizrei'iiient 
on  his  ])art;  and,  on  the  contrary,  so  negligently  and  carelessly 
kept  said  articles,  that  while  tliey  were  in  his  possession  for 
the  purposes  aforesaid,  they  were  through  his  negligence  lost, 
to  the  damage  of  the  ])laintiff dollars. 

[Demand  oi'  .Iidcmext.] 

§   1916.  For  not  taking  care  of  and  returning  goods. 
Form  No.   478. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.   That   on   the    day   of    IS..,   at 

,  tbc  plaiiitilT  delivered  to  tlie  defendant  [de- 
scribe the  articles],  of  tlie  vahu;  of   dollars,  to 

be  by  the  defendant  «afely  and  ?;ecMrely  kept  for  the  |)laintiff 
[for  a  compensation],  and   to  be  returned  nnd   redelivered   to 
Vol.  I—  II  :> 


^^  1917.    1018  FORMS    OF    <  OMPLATNTS.  946 

the  plaintilV  on  request,  wliich  the  defendant  then  and  there 
pioniised  and  undertook  to  do. 

II.  That  the  phiintilV  pei:i'ornied  all  the  conditions  thereof 

on  his  ]>art,  and  on  the   day  of ,  18.  ., 

requested  the  defendant  to  redeliver  said  goods. 

III.  That  the  defendant  did  not  take  due  care  of  and  safely 
keep  the  said  goods  for  the  plaintiff,  nor  did  lie,  when  so  re- 
quested, or  afterwards,  or  at  all,  redeliver  the  same  to  the 
phiiutitf;  but,  on  the  contrary,  the  defendant  so  negligently 
and  carelessly  conducted  himself  with  respect  to  the  said  goods, 
and  took  so  little  care  thereof,  that  by  and  through  the  care- 
lessness, negligence,  and  improper  conduct  of  the  defendant  and 
his  servants,  the  goods  were  wholly  lost  to  the  plaintiff,  to  his 
damage dollars. 

[Demand  of  Judgment.] 

8  1917.  Against  hirer  of  chattels,  for  not  taking  proper  care 
of  them. 

Form   No.   4/9. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18 .  .,  at 

,  the  defendant  hired  and  received  of  the  plain- 
tiff certain  furniture  [briefly  designate  the  same],  of  the  value 

of dollars,  for  the  period  of then 

next  ensuing  at  the  sum  of dollars  per  month 

II.  That  the  defendant  did  not  take  proper  care  of  the  said 
furniture,  or  use  the  same  in  a  reasonable  or  proper  manner 
during  the  said  time,  but  took  so  little  care  thereof  that  they 
became  injured  and  deteriorated  in  value,  to  plaintiff's  damage 
dollars- 

[Demand  of  Judgment.] 

§  1918.  For  injury  to  horse,  resulting  from  immoderate 
driving. 

Form  No.   480. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.   That  on  the    day  of    ,   18..,   at 

,   tlic   defendant     liired    and    received    from    the 

plaintiff  a  horse  to  drive,  which  was  of  the  value  of 

dollars. 


94;  BAILEES.  §§  1919,  1930 

II.  That  the  defendant  drove  the  horse  so  hard,  and  so  neg- 
lected  the  care  of  him,  that  the  said  horse  afterwards,  and 
because  of  said  immoderate  driving  and  want  of  proper  and 

reasonable  care,  on  the day  of ,  18. ., 

died    [or  otherwise  state  the  injury],  to  the  damage   of  the 

plaintiff   dollars. 

[Demand  of  Judgment.]  ^^ 

§  1919.  For  driving  horse  on  a  difEerent  journey  from  that 
agreed. 

Fonn  N'o.  481. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18 .  . ,  at 

,   the   defendant    hired   and   received   from    the 

plaintiff  a  horse  and  carriage,  of  the  value  of   

dollars,  the  property  of  the  plaintiff,  to  drive  from 

to   ,  and  not  elsewhere. 

II.  That  the  defendant,  in  violation  of  the  agreement,  per- 
formed a  different  journey  than  that  aforesaid,  and  drove  said 
horse  and  carriage  from   to   

III.  That  he  did  not  take  proper  care  of  said  horse  and  car- 
riage, but  so  negligently  drove  and  managed  the  same  that  the 

carriage  was  broken  to  the  damage  of  plaiuLitf  in 

dollars. 

[Demand  of  Judgment.] 

§  1920.  Against  innkeeper,  for  loss  of  baggage. 

Form   No.   482. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  times  hereinafter  mentioned,  the  defendant 

was  the  keeper  of  a  common  inn  in  the  city  of , 

known  as  "  the Hotel." 

TI.  That  on  the   day  of   ,  18..,  this 

plaintiff  was  received  by  the  defendant  into  the  said  inn  as  a 

23  The  ownor  of  n  liorRO,  wliioli  ho  lias  lot  to  jjo  n  sporiflo<l  Journoy 
within  a  plvon  tliiio,  ran  not  rtTovor  for  flif  loss  of  llii'  horse  If  It 
dies  from  the  efforts,  whoro  It  hns  onl.\  Imm-h  drivrn  in  ilii'  tn.'innor 
n^Tf^'d  upon.  Ilnjr>rlos  v.  F.-iy,  :'.l  Midi.  111.  I,i:i)iillly  of  lijror  of 
tiling  to  owner,  see  Devoiii  v.  Liiniher  Co.,  (W  Wis.  (ilil;  ."i4  .\ni. 
Rep.  040;  Malone  v.  H<)l>iiisoii,  77  'ia.  71!>. 


§  1021  FORMS   OF   COMPLAINTS.  948 

traveler,  togciher  with  his  haggage,  consisting  of , 

of  the  value  of   dollars   [here  describe  articles], 

the  property  of  the  phiiiitilT. 

III.  That  tlie  tlefendant  and  his  servants  so  negligently  and 
carelessly  conducted  themselves  and  niisbeiiaved  in  regard  to 
the  same,  that  while  he  so  remained  at  said  inn,  his  said  trunk 
was  taken  away  from  the  room  of  the  plaintiff,  by  some  person 
or  persons  to  the  plaintiff  unknown;  and  thereby  the  same  was 

wholly  lost  to  the  plaintiff'  to  his  damage dollars, 

[Demand  of  Judgment.] 

§  1921.  Innkeepers'  liability  at  common  law  —  boarding- 
house  keeper.  To  hold  a  party  liable  at  common  law 
for  the  loss  of  goods  at  his  inn,  it  must  appear  not  only  tluit 
he  kept  an  rnn  and  that  the  goods  were  lost  there,  but  that, 
he  was  acting  in  the  capacity  of  innkeeper  when  the  goods  were 
received,  and  that  the  owner  was  his  guest.^  A  boarding  and 
lodging-house  keeper  is  liable  for  the  loss  of  his  guest's  goods 
occasioned  through  the  negligence  of  his  own  servants  acting 
within  the  scope  of  their  employment.^'  An  innkeeper  is  liable 
for  all  loss  or  damage  to  the  goods  of  his  guests  occurring  while 
they  are  in  his  possession,  except  when  such  loss  or  damage  is 
occasioned  by  the  act  of  God  or  the  public  enemy,  or  through 
the  fault  of  the  owner.^  Innkeepers  are  liable  for  the  goods 
of  a  guest  which  are  brought  by  him  within  the  inn,^^  whether 
at  the  time  of  his  arrival  or  subsequently.^  Innkeepers  are 
liable  as  insurers  of  their  guests'  property.^  But  not  when 
the  guest,  after  being  duly  warned,  neglects  any  necessary  pre- 

24  Carter  v.  Hobbs,  12  Mich.  52;  83  Am.  Dec.  762. 

25  Smith  V.  Read,  .52  How.  Pr.  14. 

26  Hulett  V.  Swift,  42  Barb.  230;  Shultz  v.  Wall,  134  Penn.  St.  262; 
19  Am.  St.  Rep.  68G;  O'Brien  v.  Vaill,  22  Fla.  627;  1  Am.  St.  Rep. 
219. 

27  Burrows  v.  Trieber,  21  Md.  320;  83  Am.  Dec.  590. 

28  Pinkerton  v.  Woodward.  .33  CaJ.  r>.57;  91  Am.  Dec.  6.57.  As  to 
the  extent  of  his  liability  for  articles  of  jewelry  in  usual  wear, 
and  for  money,  see  Gile  v.  Libby,  36  Barb.  70;  Wilkins  v.  Earle, 
19  Abb.  Pr.  190;  see,  also,  Pinkerton  v.  Woodward,  33  Cal.  557;  91 
Am.  Dec.  657;  Fay  v.  Pac.  Imp.  Co.,  93  Cal.  253;  27  Am.  St.  Rep. 
198. 

20  Hulett  V.  Swift,  33  N.  Y.  .571,  affirming  S.  C,  42  Barb.  230; 
Pinkerton  v.  Woodward,  33  Cal.  557;  91  Am.  Dec.  657. 


949  BAILEES.  §  1922 

caution.^*^  Innkeeper  is  only  liable  as  a  bailee  for  the  horse 
of  a  person  not  his  guest  but  lodging  elsewhere.^^ 

§  1922.  For  loss  of  pocket-book. 

Form  No.  483. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant,  at  the  time  hereinafter  stated,  was 
a  common  innkeeper  at 

II.  That  on  the   day  of    ,  18.  .,  he 

received  and  entertained  this  phiinlid'  as  a  guest  at  his  inn 
for  hire. 

III.  That  while  the  plaintiff  was  then  and  there  his  guest, 
tlie  defendant  undertook  for  com])ensation  paid  him  by  the 
plaintiff,  to  keep  safely  in  one  of  his  sleeping-rooms  of  his  said 
hotel  or  inn,  tlie  clothing  and  sucli  articles  of  jewelry  and 
valuables  as  the  plaintiff  then  had  upon  his  person,  and  that 
the  plaintiff  thereu])on  put  into  his  said  sleeping-room  in  said 
hotel  or  inn  his  clothing,  his  pocket-book  containing  money,  and 
such  other  property  as  is  usually  carried  upon  the  person,  of 

the  value  of   dollars,  and  left  the  same  in  the 

possession  and  charge  of  the  defendant,  both  as  innkeeper  and 
as  special  bailee  as  aforesaid. 

IV.  That  while  this  plaintiff'  was  sleeping,  his  pocket-book 
and  money  were,  by  the  negligence,  carelessness,  and  dishonesty 
and  improper  management  of  the  defendant  and  his  servants, 
lost  and  stolon. 

V.  That  the  amount  of  the  said  money  belonging  to  the 
])lnintiff  so   lost   and    stolen,   while   the   same   was   under   the 

charge  of  the  defendant,  was dollars  in  gold  coin 

of  the  United  States,  and  that  the  plaintiff'  is  by  profession 
[state  business],  and  that  said  sum  was  such  as  he  might 
reasonably  and  properly  carry  with  him  with  reference  to  his 
circumstances  and  business. 

[DkMAXD   of    JT'DfiMKNT.] 

30  Wilson  V.  Ilalpin,  1  TUily.  4nr,:  S.  (".,  .".(»  How.  V\\  124.  As  to 
the  offcrt  fif  ommsloi)  of  ^Micsts  tr>  disclose  vmIiio  of  luicltapo  00m- 
iiiitfcd  or  offfn-d  to  it.-  <-oMmiiM«Ml  !(►  Innlii'i'iKT's  ciiMruc,  soo 
Wiliviiis  V.  Knrlc.  1!t  A  hi..  IT.  1!l(l;  I'.cmicston  v.  T'l-oiich,  II  H;iih.  'M. 

31  TnjrJilslM-c  V.  W.....!.  .'!:!  N.  V.  .".77,  ■•illinnintr  S.  C,  .'{(I  Hnrh.  452; 
ITcaly  V.  «;r:i.v.  HX  Mr.  isic  L'S  .\iii.  Krp  SO.  Contrii.  Hussoll  V. 
Fagan.  7  Iloust.   d »»•!.(  .''.S'.t. 


§§  19:^*3- ll»"v>G  I'UUMS  oi<'  comi'lausits.  950 

§  1923.  For  loss  of  goods  by  theft. 

form  No.   484. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  11.  [Same  as  in  form  No.  -182.] 

III.  'riuit  while  plaintiit'  was  such  guest,  said  trunk  was 
broken  open  and  said  articles  stolen  by  some  person  to  plaintiff 
unknown,  whereby  the  same  became  lost,  to  plaintift"s  damage 

in  the  sum  of dollars. 

[Demand  of  Judgment.] 

§  1924.  Delivery  not  necessary.  A  delivery  of  the  goods 
to  the  innkee})er  is  not  necessary  to  charge  him  with  them. 
The  innkeeper  is  bound  to  pay  for  them  in  any  event,  if  stolen 
or  carried  away,  even  though  the  person  who  took  them  away 
is  unknown.^2 

§  1925.  For  refusing  to  receive  g^est. 

Form  No.   485. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  [As  in  form  No.  482.] 

II.  That  on  said  date,  the  plaintiff,  who  was  then  traveling 

from   to    ,  came  to  said  inn  and 

demanded  of  defendant  that  he  be  received  and  lodged  as  a 
guest  during  the  night  and  day  next  ensuing. 

III.  That  plaintiff'  was  ready  and  willing  and  tendered  de- 
fendant his  reasonable  charges  for  such  lodging. 

IV.  That  defendant  had  ample  room  and  accommodation  to 
receive  and  lodge  plaintiff  during  such  time,  but  refused  to  re- 
ceive him,  whereby  [allege  special  damage],  to  his  damage  in 
the  sum  of dollars. 

[Demand  of  Judgment.] 

§  1926.  Against  warehouseman,  for  injury  to  goods  by  neglect 
to  obey  insti'uctions. 

Form  No.   486. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.   That   on  the    day  of    ,    1 8 .  . ,   at 

tlio  defendant,  in  consideration  of  the  sum  of 

dollars,  then  and  tliero  paid  to  him  by  plaintiff, 

82  Burrows  v.  Trieber,  21  Md.  .320;  8.3  Am.  Doo.  .^90. 


951  BAILEES.  §  1927 

agreed  to  store  and  keep  safely  in  his  warehouse  at , 

the  following  goods,  the  property  of  the  plaintiff,  of  the  value 

of dollars,  consisting  of  [here  designate  goods  J, 

for  the  term  of weeks  from  said  date,  and  then 

safely  to  deliver  said  goods  to  plaintiff  at  his  request,  and  then 
and  there  received  said  goods  for  such  purpose. 

II.  That  at  the  time  of  the  delivery  of  said  goods  to  defend- 
ant the  plaintiff  informed  him  that  it  was  necessary  to  the 
preseivation  of  said  goods  that  they  should  be  handled  with 
care. 

III.  That  the  defendant  negligently  allowed  the  same  to  be 
handled  without  care,  and  roughly  moved  and  broken,  so  that 
the  same,  through  the  negligence  of  the  defendant  and  his 
servants,  became  entirely  ruined,  to  the  damage  of  the  plaintiff 
dollars. 

[Demand  of  Judgment.] 

§  1927.  Warehouseman's  liability  —  railroad.  A  warehouse- 
man who  received  grain  of  another  for  the  i)urpose  of 
storage  is  only  bound  to  ordinary  care  in  its  preservation.-''^ 
When  goods  arrive  at  the  point  of  destination,  and  are  placed 
in  the  warehouse  of  the  company,  its  liability  as  warehouseman 
commences,  and  from  that  time  it  is  boimd  to  use  only  ordinary 
care  and  diligence  in  safely  keeping  and  delivering  the  goods.^* 
The  failure  of  a  bonded  warehouseman  to  deliver,  upon  demand 
of  the  owners,  goods  deposited  with  him,  ui)nn  which  the  duties 
have  been  paid,  casts  upon  him  the  burden  of  accounting  for 
them.^^  In  an  action  against  a  railroad  company  for  loss  of 
goods  as  common  carriers,  where  the  proofs  render  it  uncertain 
whether  the  goods  are  lost  while  being  transported,  or  after 
being  deposited  in  the  warehouse,  and  there  is  no  proof  of  want 
of  ordinary  care,  a  Judgment  for  thr  plaintifT  will  be  reverscd.^^ 
To  charge  the  railroad  corjKJration  as  warehousemen,  the  ])lnin- 
tiff  must  show  a  want  of  ordinary  care  on  their  part  in  the 
custody  of  the  goods.-^'^ 

83  Myers  v.  Walkor,  31  Til.  R.^.*?. 

34  Jackson  v.  S:u-.  V.  TJ.  H.  Co.,  2.-?  f':il.  2r,P>:  seo.  nlso.  Tollins  v. 
Burns.  C>?,  N.  Y.  1:  Vclsiiiii  v.  I.owls.  1.1  Orojr.  .IRf):  .'?  Am.  St.  Rrp. 
\94\  Tun-f-nlino  v.  Kfiilro.-id  Co..  lOo  N.  C.  .^7.':  fi  .\in.  St.  Hop.  •id'J. 

35  Rflnvfiin  v.  McKi*-,  ."1  N.  Y.  isii;  in  .\ni.  R<'P-  •''•><■'• 
ao.Tafkson  v.  S.-u-.   V.   1{.   1{.  Co..  2:?  f'nl.  2n.S. 

ST.Tnrkson  v.  Snc  V.  T{.  K.  Co.,  2,T  Cnl.  2f.S;  also.  Wlllftt  v.  Rich. 
142  M:iss.  3.10;  .If,  Am.  R«'li.  <'M. 


§§  ll»-2S-r.>;)2  l'\)K.MS    Ol'    «(»M1'I.A1N"TS.  952 

§  1928.  Insurance.  Wliei'c  a  warehouseman  agrees  to  insure 
goods  deposited  with  him,  and  does  so,  and  subsequently  tlie 
goods  are  destroyed  by  ih'e,  and  he  agrees  w  itli  the  owner  to 
prosecute  suits  against  the  insurance  company  in  his  own  name, 
and  does  so,  but  the  suit  is  defeated  owing  to  the  terms  oi'  a 
receipt  given  to  the  owner  at  liis  request,  by  the  warehouseman, 
the  warehouseman  is  not  liable.^** 

§  1929.  Parties.  W'areliousemen  occupying  a  private 
*'  bonded  warehouse,"  who  hokl  goods  of  a  merchant  subject 
to  the  lien  of  government  for  unpaid  duties,  under  the  acts  of 
Congress  of  1854  and  1868,  are  liable  to  the  owner  in  an  action 
for  a  loss  of  them,  without  joining  as  a  defendant  the  revenue 
officer  in  whose  custody  the  statute  declares  such  goods  to  be. 
The  custody  intended  by  the  statute  is  a  guard  or  watch,  and 
not  legal  possession  for  all  purposes.^^ 

§  1930.  Removal  of  g-oods.  Where  the  bailors  agreed  that 
the  goods  should  be  stored  in  a  certain  warehouse  at  their  risk 
and  expense,  their  removal  by  an  agent  of  the  bailees,  though 
Avithout  their  knowledge,  charged  them  for  the  safe-keeping 
of  their  goods  after  their  removal,  and  they  were  responsible  for 
any  damage  to  said  goods  caused  by  their  removal  to  an  in- 
secure or  improper  place  of  storage-^" 

§  1931.  Waiver  of  lien.  When  a  warehouseman  who  has 
goods  in  charge,  states  to  one  who  is  about  to  take  possession 
of  the  same,  by  a  legal  process,  that  he  has  no  charges  on  the 
goods,  this  is  a  waiver  of  the  warehouseman's  lien  for  charges, 
if  any  be  had.^^  ' 

§  1392.  Wharfingers.  Where  grain  was  delivered  to  wharf- 
ingers M'ith  instructions  to  ship  to  a  certain  party  when  certain 
rates  could  be  had.  hut  before  shipment  they  were  instructed 
not  to  ship  to  such  party  hut  to  another,  and  they  neglected 
the  second  instruction  hut  acted  on  the  first,  whereby  the  price 

38  Cole  T.  Favorite,  P>9  111.  4.57. 

39  Waldron  v.  Romaine,  22  N.  Y.  370;  Cartwright  v.  Wilmerding, 
24  id.  ."330;  2  Blatchf.  121;  Schwerin  v.  McKie,  5  Rob.  404. 

40  St.  Losky  V.  Davidson.  6  Cal.  043. 
*i  Blackman  v.  Pierce,  23  Cal.  508. 


953  BAILEES.  §§  1933-1935 

of  the  grain  was  lost  to  the  owner  on  account  of  the  insolvency 
of  the  consignee,  it  was  held  that  the  wharfingers  were  liable.''^ 

§  1933.  For  refusal  to  deliver  goods. 

FGrin  No.  487. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of    ,   18..,  at 

,  the  defendant,  in  consideration  of    the    pay- 
ment to  him  of dollars  [or cents 

per  ton  per  month],  agreed  to  keep  in  his  warehouse  [ 

tons  of  wheat],  and  to  deliver  the  same  to  plaintiff  on  pay- 
ment of  the  said  sum. 

II.  That  thereupon  the  plaintiff  deposited  with  the  defend- 
ant the  said  [ tons  of  wheat]. 

III.  That  on  the day  of ,  18. .,  the 

plaintiff  requested   the   defendant   to   deliver  the  said   goods, 

and  tendered  liim   dollars  [or  the  full  amount 

of  storage  due  thereon],  but  the  defendant  refused  to  deliver 
the  same,  to  the  damage  of  the  plaintiff dollars. 

[Demand  of  Judgment.] 

§  1934.  Pasturing  stock.  Where  defendant,  an  agistor  of 
cattle,  placed  plaintiff's  horse  in  a  field,  knowing  that  a  bull 
kept  on  adjoining  land  had  several  times  been  found  in  the 
field  in  which  the  horse  was  placed,  and  that  there  was  no 
sufficient  fence  to  keep  it  out,  and  there  were  several  heifers  «n 
the  field  with  tlie  horse,  and  the  horse  was  gored  and  killed  by 
the  bull;  in  an  action  for  breach  of  contract  in  not  taking  rea- 
sonable care  of  the  horse,  it  was  held  that  a  knowledge  of  the 
mischievous  nature  of  the  bull  was  not  essential  to  the  liability 
of  defendant,  and  a  verdict  against  him  would  not  be  disturbed 
for  want  of  such  knowledge.*^ 

§  1935.  Property  of  plaintiff.  Though  it  is  usual  to  aver 
that  the  goods  were  the  property  of  the  plaintiff,  wo  do  not 

43IIowp1I  v.  >rorlan,  7«  111.  MV2.  Linhlllly  of  wlmrflnpors. 
gf'Monilly.  SOP  Nf'w.'ill  v.  Hnrllcff,  114  N.  V.  .".•i!!:  riiltni  Ic-  Co.  v. 
Crowoll,  ;")  Voi\.  Kcp.  S7:  Wllh-y  v.  Alk'jjliriiy  ("ily.  lis  Pcnu.  St. 
4f)(»:  4  Am.  St.  lU'p.  r,<»K. 

43  Smith  v.  f'ook,  I^.  11..  1  Q.  I'..  I>iv.  Tit.  .\ii  nu'lsfor  Is  in>t  jih 
Insurer  of  the  property.    Cihlis  v.  ('oykciidiill.  .'!!»  IIuii.  HO. 

Vol.  I—  1-M) 


^§  rJ35a  roKMs  of  ( omplaints.  954 

doem  such  an  avonnent  necessary,     lie  could  sue  in  his  own 
name  if  he  were  but  the  agent  of  the  owner.^* 

S  1935a.  Money  deposited  for  use  of  plaintiff.  As- 
sumpsit for  money  deposited  with  the  defendant  for  the  use  of 
the  plaintiff  will  not  lie  where  the  money  was  deposited  by 
way  of  pledge  as  security  for  the  performance  of  a  special  con- 
tract in  writing,  which  is  still  open  and  unexecuted  in  part, 
and  not  rescinded  by  mutual  consent,  but,  in  such  case,  it  is 
necessary  to  declare  specially  upon  the  written  contract.*'' 

44  N.  y.  Code  Commissioners. 
46  Barrere  v.  Somps,  113  CaJ.  97. 


CHAPTER  II. 

COMMON    CARRIERS. 

§  1936.  Against  common  carrier,  for  breach  of  duty. 
Form  No.  488. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  times  hereinafter  mentioned,  the  defendant 
was  a  common  carrier  of  goods  for  hire,  between  the  places 
hereinafter  named. 

II.  That  on  the   day  of    ,  18..,  at 

,  one  A.  B.  delivered  to  the  defendant  certain 

goods,  the  property  of  the  plaintiff,  to-wit  [designate  tlie 
goods],  of  the  value  of dollars,  and  the  defend- 
ant, as  such  carrier,  received  the  same,  to  be  by  him  safely 

carried  to ,  and  tliere  delivered  to , 

for  a  reasonable  reward  to  be  paid  by therefor. 

III.  That  the  defendant  did  not  safely  carry  and  deliver  said 
goods;  but,  on  the  contrary,  so  negligently  conducted,  and  so 
misbehaved  in  regard  to  the  same  as  such  carrier,  that  tlie 
same  were  wholly  destroyed  and  lost  to  the  plaintiff,  to  hi.s 
damage dollars. 

[Demand  of  Judgment.]  ^ 

§  1937.  Liability  of  common  carrier  of  goods  —  de- 
gree of  care.  Under  the  OeneTal  Railroad  Law,  all  i-ailroads 
are  compelled  to  act  as  common  carriers  for  the  conveyance  of 
all  passengers  and  property  which  may  come  to  their  rond  for 
that  purpose.^  As  common  carriers,  they  are  bound  to  safely 
ti-ansport  and  deliver  goods  to  the  point  of  their  destination, 
unless  the  same  arc  lost  by  the  act  of  (iod  or  the  public  enemy. 
In  such  a  case,  the  burden  of  proving  tluit  they  are  thus  lost 

1  For  tlio  jirovisioiis  of  llic  C':ilir<»niiii  rivil  fodr  In  reljitlon  to 
carriage  in  freiienil,  carriiiKc  of  imtsoms,  carriMKe  of  jtroix-riy. 
carria^re  of  niessajjes,  and  <'oninion  carriers,  sec  tit.  7,  SS  liOS."i-L"Jo!». 

2  Contra  Costa  It.  !!.  <'o.  v.  ^Foss,  2.T  ^'al.  IVS.l  A  Kencral  tnnk- 
man  i.s  a  conimon  currier.  Iron  Co.  v.  Ilurlburt,  36  N.  Y.  Supp. 
808;  71   N.   V.  St.  Kep.  8.'iO. 


{<J<   l'.t:>8,    19o'.)  FORMS    Ul'    COMI'LAINTS.  956 

ivsis  upon  the  company.''  Bui  the  breach  of  a  contract  to  nav- 
igate on  a  river  is  excused  if  caused  by  the  river's  freezing,  so 
as  to  make  navigation  impossibk',  this  l)oing  an  act  of  God. 
That  tlie  contractor,  at  the  time  of  making  the  contract,  had 
reasons  wliich  were  equally  obvious  to  the  other  party,  for  ex- 
pecting sutli  an  event,  docs  not  alter  the  case.^  A  railroad 
company  must  })rovide  all  reasonable  precaution  to  protect 
property  of  others,  and  it  must  also  be  properly  used,  and  the 
company  are  liable  for  carelessness.  They  are  bound  to  exer- 
cise a  degree  of  care  ju'oportionate  to  the  danger.^  A  carrier 
of  persons  without  reward  must  use  ordinary  care  and  diligence 
for  their  safe  carriage.^  A  carrier  of  persons  for  reward  must 
use  the  utmost  care  and  diligence  for  their  safe  carriage;  must 
provide  everything  necessary  for  that  purpose,  and  must  exer- 
cise to  that  end  a  reasonable  degree  of  skill.'^ 

§  1938.  Liability  as  ordinary  bailees.  Where  caiTiers 
make  it  the  duty  of  their  agents  by  general  regulation  to  take 
charge  of  property  inadvertently  left  in  their  cars,  and  provide 
at  their  depot  a  place  for  its  safe-keeping,  they  must  in  taking 
charge  of  the  property  be  looked  upon  as  in  the  light  of  bailees 
for  hire,  who  are  bound  to  exercise  ordinary  care  and  diligence.* 

§     1939.    Injury     remotely     attributal  —  insurer.  A   com- 

mon caiTier  is  absolutely  liable  for  injury  remotely  attributable 
to  his  own  default,  though  inevitable  accident  be  the  immediate 

3  Jackson  v.  Sacramento  Valley  R.  R.  Co.,  23  Cal.  268;  Bohannau 
V.  Hammond,  42  id.  227;  Bush  v.  Barrett,  96  Cal.  202.  As  tO'  the 
obligations  of  carriers  of  property,  see  Civil  Code,  §  2114,  and 
following. 

4  "Worth  V.  Edmonds,  52  Barb.  40. 

5  Gerke  v.  Cal.  Steam  Navigation  Co.,  9  Cal.  251;  70  Am.  Dec. 
6.50;  see  L.  M.  R.  Co.  v.  Washburu,  22  Ohio  St.  332. 

0  Cal.  Civil  Code,  §  2096. 

7  Cal.  Civil  Code,  §  2100;  see,  also,  id.,  §§  2101-2104;  Bush  v.  Bar- 
nett,  96  Cal.  202;  Treadwell  v.  Wliittier,  80  Cal.  583;  13  Am.  St. 
Rep.  175.  As  to  the  care  and  diligence  required,  directions,  con- 
flict of  orders,  stowage,  deviations,  etc.,  delivery  of  freight,  obliga- 
tions when  freight  not  delivered,  and  how^  exonerated  from  liability, 
see  Civil  Code,  §§  2114-2121,  31.5.5. 

SAng.  on  Carr.,  §§  75,  112,  131,  302;  Edw.  on  Bailments,  3.5,  36; 
26  Wend.  591;  Tower  v.  Uticn,  etc..  R.  R.  Co.,  7  Hill,  47;  42  Am.  Dec. 
36:  Morris  v.  Third  Ave.  R.  R.  Co.,  1  Daly,  202;  see  the  case  of 
O'Bannon  v.  Southern  Ex.  Co.,  51  Ala.  481. 


957  COMMON  CAKRIERS.  §§  1940-1942 

cause.^  It  would  seem  that  the  common  carrier  is  an  insurer 
of  the  property  intrusted  to  him.  and  is  legally  responsible  for 
acts  against  which  he  can  not  provide,  from  whatever  cause 
arising  —  the  acts  of  God  and  the  public  enemy  alone  ex- 
cepted.^*^ 

§  1940.  Letters.  A  common  carrier  of  letters  inclosed  in 
envelopes  is  not  liable  for  any  loss  beyond  that  of  an  ordinary 
letter,  unless  informed  of  the  value  of  the  same  at  the  time  he 
received  the  same.^^  A  contractor  for  carrying  the  mail  is  liable 
for  the  negligence  of  the  carrier.^^ 

§  1941.  Liability  of  inland  carriers  for  loss.  In  Cali- 
fornia, unless  the  consignor  accompanies  the  freight  and  retains 
the  exclusive  control  of  it,  the  carrier  is  liable  from  the  time 
he  accepts  it  until  he  is  relieved  from  liability  pursuant  to 
the  provisions  of  the  statute  for  loss  or  injury  from 
any  cause  whatever,  except:  1.  An  inherent  defect,  vice, 
or  weakness,  or  a  spontaneous  action  of  the  pro])erty 
itself;  2.  The  act  of  a  public  enemy  of  the  Ignited  States, 
or  of  this  state;  3.  The  act  of  the  law;  or,  4.  Any  irresistible 
superhuman  cause;  and  the  carrier  is  liable,  (Tven  in  cases  com- 
ing within  the  above  exceptions,  if  his  ordinary  negligence  ex- 
poses the  property  to  the  cause  of  the  loss.^^  A  carrier  is  liable 
for  delay,  only  when  it  is  caused  by  his  want  of  ordinary  care 
and  diligence--^^ 

§  1942.  Liability,  how  terminated.  Tlie  liability  of  a 
carrier  ceases,  and  he  becomes  an  ordinary  bailee,  on  refusal  of 
consignee  to  receive  the  goods, '•'''  m-  by  delivering  to  agent  ex- 

9  Mifhaols  v.  New  York  Cent.  K.  U.  Co..  .30  \.  Y.  5(54;  S<;  \m.  Dec. 
415;  KtHMl  v.  Spauldinj:,  ?,()  X.  Y.  ^O;  SO  .\ni.  Dec.  42;";  .Morritt.  v. 
Earle,  2'.)  N.  Y.  ll.".;  sc,  Am.  Dee.  2012;  and  sec  Hlaek  v.  Itailmad 
Co.,  30  \el>.  107:  Hills  v.  Railroad  Co..  S4  N.  Y.  .'.. 

loilooi»er  v.  Wells,  Fnrpo  &  Co.,  27  Cal.  10;  see  100  .Mass.  .'.oC: 
1  Am.  Ue]).  l.'U;  Kentucky.  Rank  of,  v.  Adams  Ex.  Co..  JKJ 
U.  S.  ISC;  Hohannan  v.  Hammond.   12  ("al.  227. 

11  Hayes  v.  Wells.  Far>.'o  A:  Co.,  2:;  Cal.  IS.",:  s:!  Am.  D.-e.  SO;  see 
Cal.  Civil  Code.  §§  2101,  2102.  2107. 

12  Sawyer  v.  Corse.  17  Cratf.  2.'!n:  '.H   Am.   I  •<■<•.  U.".. 

13  See  Civil  Code,  SS  21!M.  210.5. 

14  Id.,  §  2100;  TalmiT  v.  ,\iiliis(m.  <li'.,  K.  U.  <'o..  101  Cal.  1H7. 

in  ILntlioru  v.  Ely.  2.S  .\.  V.  7S;  .loiins.m  v.  .New  York  Cent.  R.  R. 
Go.,  33  id.  010;  88  Am.  Dec.  410. 


Sjj    1!'-!:;),    i;i4-l  l-OK.MS    OF    COMI'I.AINT.S.  958 

pressly  or  imi)lie(lly  authovizeil  lo  receive  goods. ^'^  Such  deliv- 
ery to  agent  must  be  regulai'ly  made,  and  in  due  course  of 
business.'*'  But  tiiough  liable  as  insurer  until  actual  delivery, 
be  may  be  discharged  by  neglect  oi'  owner  of  goods  to  take 
them  in  due  season.^** 

S  1943.  Liability  for  live-stock.  Where  the  defendants, 
as  carriers,  transporting  live-stock,  met  with  an  accident  for 
which  they  were  not  liable  under  their  contract,  by  which  the 
animals  were  killed,  it  was  held  that  they  were  not  liable  for 
not  delivering  the  carcasses,  where  they  had  offered  to  carry 
the  carcasses  through,  if  the  owner,  who  was  present,  would 
take  charge  of  them,  and  the  offer  was  declined. ^^ 

§  1944.  Presumption  as  to  liability.  The  presumption 
is  that  the  responsibility  of  a  party  as  carrier  continues  until 
the  entire  transit  is  complete.^*^  And  further  until  actual  de- 
livery to  the  party  to  whom  the  goods  are  addressed,  or  his 
agent.^^  Or  to  the  carriers  next  in  order,  on  a  connected 
route.^  In  the  absence  of  an  express  contract  the  obligation  of 
a  carrier  of  goods  is  to  carry  them  according  to  the  usual  route 
for  the  conveyance  of  such  articles  by  him  for  the  pu1)lic,  and  to 
deliver  them  within  a  reasonable  time.^^     The  presumption  of 

16  Piatt  V.  Wells,  26  How.  Pr.  442;  Hotchkiss  v.  Artisans'  Bank, 
42  Barb.  517. 

17  Crookite  v.  Wells,  32  N.  Y.  247. 

18  Roth  T.  Buffalo  &  State  Line  R.  R.  Co.,  34  N.  Y.  .548;  99  Am.  Dec. 
736;  Gilhooly  v.  New  York  &  Savannah  S.  N.  Co.,  1  Daly,  197; 
see,  also,  Civil  Code,  §  31.5.5. 

19  Lee  V.  Marsh,  43  Barb.  102;  S.  C,  28  How.  Pr.  275.  Whether, 
in  the  conveyance  of  live-stock,  the  duties  and  liabilities  of  the 
common  law  attach  to  the  caiTier,  has  been  questioned  by  the 
Oregon  couii;.  Honeyman  v.  Railroad  Co.,  13  Oreg.  3.52;  57  Am. 
Rep.  20.  And,  in  Michigan,  the  carriers  of  live-stook  are  not 
regarded  as  common  eaiTiers  unless  they  have,  liy  special  contract, 
expressly  assumed  the  responsibilities  of  such.  I^ake  Shore,  etc., 
R.  R.  Co.  v.  Perkins,  25  Uu-h.  .329;  12  Am.  Rep.  275.  Carrying 
live-stock,  and  liability  as  to,  see  Huston  v.  Railway  Co.,  63  Mo. 
App.  671;  Holloway  v.  Railway  Co.,  62  id.  53;  Kincaid  v.  Railway 
Co.,  id.  365. 

20  Ladue  v.  Griffith,  25  N.  Y.  364;  82  Am.  Dec.  360. 

21  Fenner  v.  Buffalo  &  State  Line  R.  R.  Co.,  46  Barli.  103. 

22  McDonald  v.  The  Western  R.  R.  Corporation,  34  N.  Y.  497. 

23  Hales  v.  London,  etc.,  R.  R.  Co.,  4  B.  &  S.  66. 


959  COMMOX    CARRIERS.  §  19-1:5 

law  is  against  a  common  carrier,  except  it  be  made  to  appear 
that  the  injury  complained  of  could  not  have  happened  by  the 
intervention  of  human  means."'* 

§  1945.  Connected  routes.  Each  company  concurring  in 
the  carriage  of  goods  on  a  connected  route,  is  lial)le,  even 
though  part  of  joint  route  be  out  of  state.^  The  above  rule  is 
partially  relaxed  to  the  effect  that  each  company  is  only  liable 
for  carriage  of  the  goods  in  the  condition  in  which  it  receives 
them.-*^  A  railroad  company  which  for  a  consideration  receives 
the  cars  of  a  connecting  company  into  its  custody  and  control, 
and  draws  them  with  their  contents  over  its  own  road,  is  liable 
as  a  common  carrier  for  injuries  to  such  cars  during  their 
transit  over  such  road.^^  When  a  railroad  company  contracts 
to  forward  goods  from  Cincinnati  to  Philadelphia,  it  is  an  entire 
contract,  and  the  company  is  liable  for  any  damage  on  the 
whole  route.^  In  case  of  a  passenger  ticket  over  several  lines, 
for  an  entire  price,  the  contract  is  entire,  and  the  company 
selling  the  ticket  may  be  held  solely  liable,  or  the  traveler  may 
look  to  the  real  principals,  and  subject  all  who  are  interested 
in  the  joint  contract.^' 

24Agnew  v.  Steamer  Contra  Costa,  27  Cal.  425;  8T  Am.  Dec.  87. 
For  full  and  definite  statement  as  to  positions  which  may  be  eon- 
siden'd  as  settled  with  reference  to  responsibility  of  railroad  com- 
])anies  as  common  carriers,  see  Bissell  v.  New  Yorli  Cent.  K.  K.  ('o., 
2.^)  N.  Y.  442,  4.'i.T-4.5»>:  82  Am.  Dec.  ^(>i):  also,  Ala.,  etc,  U.  U.  Co.  v. 
Thomas,  SO  Ala.  204;  18  Am.  St.  Uep.  110;  (4eismer  v.  Uailroad  Co.; 
102  N.  Y.  563;  55  Am.  Hep.  837. 

2s  Burtis  v.  Buffalo  &  State  Line  K.  K.  Co.,  24  N.  Y.  2<;0;  Simmons 
V.  Law.  8  Bo«w.  213;  McDonald  v.  The  Western  K.  II.  Cori)oration, 
34  N.  Y.  407;  Wyman  v.  Chicajio,  etc..  Railway  Co.,  4  Mo.  App.  :'.5. 

20  Smith  V.  New  York  Cent.  K.  U.  Co.,  4::  I'..iil>.  l"-'.".. 

27  Vermont  &  M.  K.  K.  Co.  v.  I'ltdil^nr;,'  K.  U.  C<>..  Of,  .M;iss.  4r,2; 
02  Am.  Dec.  785.  As  lo  liow  t:ir  liai)ili(y  may  be  (|n:illlie<l,  see 
C.  IL  iV:  D.,  etc..  ("o.  v.  roiilius  ^  Ki.lmioml.  10  oliio  Si.  L'-Jl ;  L' 
Am.  Kejt.  301. 

2SFatman  \-  Co.  v.  (".  II.  iV  D.  K.  I!.  <"<'..  -  I'isncy.  2i.S;  (Jaines 
V.  T'ninii  'I'l-ans..  etc.,  Co.,  L'S  Oliio  SI.  IIS;  I'ield  v.  (^lii<-ii!,'o.  etc., 
K.  It.  Co.,  71  111.  t.'S;  W.Mbasli,  etc..  It.  H.  Co.  \.  .I;iu';:ciiii:in.  11.".  id. 
407;  Baltimore,  etc.,  K.  K.  <"o.  v.  C:impbeil.  :;•;  oliio  St.  (;)7;  3.S 
Am.  Uei).  <;17;  I'cieir.i  v.  Kailro.Hl  Co..  W  Caj.  OJ.  I'.iil  sec  Keniu'.ali 
V.  Bailroad  Co..  SI  id.  L'ls;  I'.iliiicr  v.  Itailio.'id  Co.,  HH  id.  1S7; 
Cal.  Civil  Co(lc.  !!  •J'Jnl:  Sav.iniiali,  etc.,  U.  K.  Co.  v.  Harris.  2<J 
Fla.  14S;  L'3  .\iii.   St.    Kci'-  •"'•"'• 

2ft  Check  V.  1..  M.  K.  Co..  •_'  Disiicy  (Ciii.  Sii|.i-.  Cl.i.  'J.".7;  It;iilroad 
Co.  v.  C:iiiiiii<cii.  :;r,  oiiio  si.  (;i7:  :is  .\iii.  i!c|'-  ''i"-    -^^  '"  "'"'  ■•ibso- 


§§  r.ttll    l".t48  rOU.MS   OF    (  O.MI'LAINTS,  9G0 

§    1946.     Carriage     of     perishable     property.  When     two 

kinds  oi'  })ropoity,  one  perishable  and  llie  otlier  not,  are  de- 
livered to  a  common  carrier  at  the  same  time,  by  dilTerent 
owners,  for  transportation,  if  the  carrier  can  not  carry  all  the 
property,  he  may  give  preference  to  the  perishable;  and  if  either 
must  wait,  it  should  be  tlie  latter  or  iionperishable.^" 

§  1947.  Notice  to  owner  restricting  liability.  Notice 
to  restrict  the  liability  of  carriers  is  not  suiiicient  to  bind  the 
owner  of  goods  carried,  if  only  given  without  his  knowledge  or 
assent,  to  one  who  was  directed  by  him  to  deliver  the  same  to  the 
carrier.^^  And  while  common  carriers  may  limit  their  liability 
by  special  contract,  they  can  not,  for  reasons  of  public  policy, 
relieve  themselves  from  liability  for  tiic  actual  value  of  the 
goods  shipped,  provided  they  have  notice  of  such  value,  when 
loss  or  injury  is  occasioned  by  the  negligence  of  themselves  or 
their  employees.^^ 

§  1948.  Treatment  of  passengers.  If  a  railroad  company 
holds  itself  out  as  a  common  carrier  to  a  point  beyond  the 
termination  of  its  road,  it  is  deemed  a  common  carrier  for  the 
whole  distance,  and  if  it  professes  to  contract,  and  does  con- 
tract with,  and  carries  persons  the  entire  distance,  it  must  treat 
all  alike,  and  contract  with  and  carry  all  Avho  apply.  This 
principle  applies  to  the  carriage  of  goods  as  well  as  passengers.^^ 

lute  duty  to  obey  the  instructions  of  the  owner  of  goods  directed 
to  be  forwarded  beyond  the  terminus  of  his  own  route,  and  his 
responsibility  in  case  of  a.  deviation,  see  .Tohnson  v.  New  York 
Cent.  R.  R.  Co.,  .3.3  N.  O.  GIO;  88  Am.  Dec.  416;  and  Civil  Code, 
§§  211.5,  2116. 

30  Marshall  v.  New  York,  etc.,  R.  R.  Co.,  4.1  Barb.  .502;  Tierney  v. 
Railroad  Co..  10  Hun,  569;  76  N.  Y.  305. 

31  Fillebrown  v.  Grand  Tmnk  R.  Co.,  .55  Me.  462;  92  Am.  Dec. 
606;  C.  H.  «fe  D.,  etc.,  Co.  v.  Pontius  &  Richmond.  19  Ohio  St.  221; 
2  Am.  Rep.  .391;  see,  also.  Civil  Code,  §§  2174,  217.5  and  2176;  Brown 
V.  Adams  Ex.  Co..  15  W.  Va.  812;  Erie,  etc..  Trans.  Co.  v.  Dater, 
91  111.  195;  33  Am.  Rep.  51. 

32  Overland  Mail,  etc.,  Co-,  v.  Carroll,  1  West  Coast  Rep.  281; 
Witting  V.  Railroad  Co.,  101  Mo.  613;  20  Am.  St.  Rep.  636.  As  to 
effect  of  concurrent  want  of  due  care  on  part  of  owner,  see 
Hamilton  v.  :McPl)erson,  28  N.  Y.  72;  84  Am.  Dec.  3.30. 

33  Wheeler  v.  S.  F.  &  A.  R.  R.  Co.,  31  Cal.  46;  89  Am.  Dec.  147; 
Barney  v.  Steamboat  Co.,  67  N.  Y.  .301;  23  Am.  Rep.  115;  Lake  Erie, 
etc.,  R.  R.  Co.  v.  Acres,  108  Ind.  548. 


961  COMMOX    CAHKIEKS.  §§   \'J-\'J    1951 

§  1949.  When  not  liable.  A  carrier  is  not  liable  for  the 
loss  of  money  of  one  passenger  contained  in  a  valise  which  an- 
other passenger,  with  the  knowledge  of  the  first,  delivers  as  his 
own  baggage,  and  the  carrier  receives  it  as  such.^*  Carriers  can 
not  be  held  liable  for  the  breaking  of  very  brittle  articles  in  a 
package  for  want  of  specially  careful  handling,  if  they  are  not 
warned  of  the  contents  of  the  package."^^ 

§  1950,  Carriage  without  compensation.  A  common  car- 
rier is  not  liable  for  the  loss  of  goods  where  he  is  to  receive  no 
compensation  for  the  carriage,  and  where  he  has  exercised  ordi- 
nary diligence  in  respect  to  the  same.  His  liability  in  such  a 
case  is  only  that  of  a  bailee  without  hire.^^  The  rule  seems  to 
be  different  in  Minnesota.  A  complaint  which  alleges  a  de- 
livery of  goods  to  a  common  carrier,  and  acceptance  by  him 
to  be  conveyed  by  him  without  reward,  the  loss  of  the  goods 
occasioned  by  the  gross  negligence  of  the  defendant,  together 
with  the  value  of  the  goods  and  the  amount  of  the  loss  of  the 
bailor,  states  a  ground  of  action.^'''  All  bailments,  with  or  with- 
out compensation  to  the  bailee,  are  contracts  founded  on  a 
sufficient  consideration.^^ 

g  1951.  Essential  averments  —  delivery.  Where  the  com- 
plaint contains  averments  against  the  defendants  as  common 
carriers,  and  the  action  was  for  damages  done  to  merchandise 
in  their  transportation,  it  was  held  that  it  was  indisjjcnsable 
for  the  plaintiff  to  prove  that  defendants  were  common  carriers, 
and  that  the  goods  were  delivered  to,  and  received  liy  them  as 
such,  for  the  purpose  of  lieing  transported  for  hire.^^  Delivery 
to  carrier  in  good  order  must  be  sjiown  to  maintain  an  action 
for  full  value.  The  burden  of  proof  then  sliifts.^''  IWil  such 
delivery  must  be  to  liim  or  his  authorized  agent. ''^ 

34  Diinlap  v.  Intornational  Sle:inihn;it  Co..  Jis  M.mss.  .^Tl. 

35  American  Ex]tn>ss  Co.  v.   rci'kins,  42  111.  -l.'iS. 

3«Fay  v.  Str.  New  World,  1  Cal.  'MH;  .Melbourne  v.  Railroad  Ck>.. 
88  Ala.  443. 

37  McCauley  v.  Davidson,  10  Minn.  41M:  I.'',  id.  ic,.",;  j)7  Am.  Dec. 
228. 

3«  Id. 

30i:inKjrold  v.  Haven.  1   CmI.  110. 

40Sniitli  V.  New  Yorl<  Cent.  K.  It.  Co..  4.'?  Barb.  225. 

41  Ball  V.  New  .Tersey  Steamboat  Co,.  1  Daly,  401. 

Vol,    I—  1_M 


§  1U52  FORMS    OK    COMPLAINTS.  96? 

§  1952.  Against  common  carriers,  for  loss  of  goofls. 

I'orni  No.   ^69. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  times  hereinafter  mentioned,  the  defendant 
was  a  common  carrier  of  goods,  for  hire,  between  the  places 
hereinafter  mentioned. 

II.  That  on  the   day  of   ,  18..,  at 

,  in  consideration  of  the  sum  of   , 

then  paid  [or  as  the  case  may  be]  to  him  by  the  plaintiff,  the 

defendant  agreed  safely  to  carry  to   ,  and  there 

deliver  to or  order  [or  otherwise,  according  to 

the  fact],  certain  goods,  the  property  of  the  plaintiff,  of  the 

value  of dollars,  consisting  of  [here  describe  the 

goods],  which  the  plaintiff  then  and  there  delivered  to  the 
defendant,  who  received  the  same  upon  the  agreement  and  for 
the  purposes  before  mentioned. 

III.  That  the  defendant  did  not  safely  carry  and  deliver  the 
said  goods  pursuant  to  said  agreement,  but,  on  the  contrary, 
the  defendant  so  negligently  conducted  and  so  misbehaved  in 
regard  to  the  same,  in  his  calling  as  carrier,  that  they  were 
wholly  lost  to  the  plaintiff,  to  his  damage dollars. 

[Demand  of  Judgment.] 

The  complaint  must  aver  that  the  defendant  is  a  common 
carrier.^^  But  all  corporations  operating  railroads  in  Indiana 
are  made  common  carriers  by  provision  of  statute.  So  an  aver- 
ment that  a  corporation  is  engaged  in  operating  a  line  of  rail- 
road is  equivalent  to  an  averment  that  it  is  a  common  can-ier.^' 
In  an  action  by  the  consignor  against  the  common  can-ier  for 
damages  for  the  nondelivery  of  the  goods  to  the  consignee  at  the 
place  stipulated  in  the  contract,  the  complaint  is  held  bad  on 
demurrer  if  it  does  not  allege  that  the  plaintiff  was  the  owner 
of  such  goods,  or  that  such  goods  were  not  elsewhere  delivered 
to  and  accepted  by  the  consignee  than  the  place  named  in  the 
contract.^* 

The  liability  of  a  common  carrier  for  the  nondelivery  of 
goods  intrusted  to  him  for  carriage,  may  be  enforced  by  an 

42  Louisville,  etc.,  U.  R.  Co.  v.  Gerson  (Ala.),  14  So.  Rep.  873. 

43  Pennsylvania  Co.  v.  Clark,  2  Ind.  App.  146. 

44  Pennsylvania  Co.  v.  Holderman,  69  Ind.  18. 


963  COMMON   CARRIERS.  §  1953 

action  in  either  of  the  forms  formerly  known  as  assumpsit  or 
tort,  at  the  option  of  the  ploader.'*^  The  suit  may  be  framed 
either  ex  contractu,  upon  the  breach  of  the  engagement  to 
carry  and  dehver,  or  ex  delicto,  upon  the  violation  of  the  pub- 
lic duty.*^  Where  the  summons  was  in  the  form  of  an  action 
for  money  on  a  contract,  and  the  complaint  alleged  that  the 
defendant's  business  was  to  carry  goods  for  hire,  the  delivery  of 
goods  to  the  defendant,  payment  of  charges,  the  undertaking 
of  the  defendant  to  deliver,  and  the  loss  of  the  goods,  of  the 
amount  claimed,  with  interest,  it  was  held  that  the  action  was 
"upon  contract.*^  On  the  other  hand,  in  action  upon  tort  the 
essential  allegations  of  the  complaint  are  that  the  defendant  was 
a  common  carrier,  the  custom  appertaining  thereto,  and  his 
duty  as  such,  the  loss  of  goods  through  the  defendant's  neg- 
ligence or  conversion,  and  the  damages  sustained  by  the  plain- 
tiff by  reason  of  the  loss  of  his  goods.'*'^  It  need  not  be  alleged 
that  a  compensation  was  paid  or  agreed  to  be  paid  for  carrying 
the  goods.'*^ 

§  1953.  Act  of  God.  The  expression,  "  act  of  God,"  as 
used  in  the  law  of  carriers,  includes  those  losses  and  injm-ies 
which  are  occasioned  exclusively  by  natural  causes,  such  as 
could  not  be  prevented  by  human  care,  skill,  and  foresight.'*" 
Those  acts  are  to  he  regarded  in  a  legal  sense  as  the  acts  of  God 

45  Catlin  V.  Adirondack  Co.,  11  Abl).  X.  C.  377;  roversinjr  20 
Hun,  10. 

40  Baltimore,  etc.,  R.  R.  Co.  v.  Pumphrey,  ^^9  Md.  390.  Wliore  the 
defendant,  wliether  regarded  as  a  common  carrier  or  a  wardiouse- 
man,  is  lialjle  for  misdelivery  of  tbe  goods,  a  plaintiff  wlio  has 
counted  upon  the  liability  of  the  defendant  as  a  common  carrier 
may  recover  against  such  carrier  as  a  wareliouseman.  Cavallaro  v. 
Railway  Co.,  110  Cal.  348. 

47  Catlin  V.  Adirondack  Co.,  11  Abl).  .\.  <\  377;  reversing  2o  I  Inn, 
19. 

48  Id.;  and  see  Rideout  v.  Railroad  Co.,  SI  Wis.  2.37. 

40  Hall  V.  Cheney,  30  N.  H.  2<i;  and  see  Wiggin  v.  Koston,  etc..  R. 
R.  Co.,  120  Mass.  201;  Davis  v.  Jacksonville  S.  E.  Line,  120  Mo.  (59. 
Under  a  complaint  charging  tiie  defendant  as  n  common  caiTier,  no 
recovery  can  1m,>  had  upon  i>rrK>f  of  a  liability  as  a  private  carrier 
only.     Honeyman  v.   Railm.-id  Co.,  1.".  Oreg.  .■'.."(2;  .">7  Am.   R4'p.  20. 

60  McAilliur  V.  Sears,  21  Wend,  litd;  Merritf  v.  Karle,  .31  H.-irli.  3.S; 
Trent  Xavlgation,  I'roprietors  of.  v.  Wood.  3,  Ksp.  127;  1  T.  R.  27; 
1  Harp.  4<;S;  McHenry  v.  riiiladelpliia.  elr..  K.  I{.  Co.,  4  Iljirr.  (I)»'l.) 
448;  Slordet  v.  Hall,  4  Ring.  <;o7;  New  Brunswick,  etc..  Co.  v.  Tiers, 


§§  H-'O-l-liiDO  I'ORMS    OF   COMPLAINTS.  964 

which  do  not  liappcn  tlivo\igh  human  agency,  such  as  storms, 
lightnings,  and  tempests.'^^  Tho  elements  are  the  means 
through  which  Cod  acts,  and  damages  by  the  elements  are 
damages  by  the  act  of  Cod. 

§  1954.  Date  —  amount.  Jr.  an  action  to  recover  the  value 
of  a  draft  lost  by  a  carrier,  a  complaint  which  does  not  state  the 
date  of  the  draft  which  was  lost  by  the  common  carrier,  the 
amount  for  whicli  it  \\as  drawn,  the  time  when  it  was  payable, 
or  to  whom  payable,  is  insuilicient.'^^ 

§  1955.  Liability.  The  law  adjudges  a  common  carrier 
responsible  for  loss  of  goods,  irrespective  of  any  question  of 
negligence  or  fault  on  his  part,  if  the  loss  does  not  occur  by  the 
act  of  God  or  the  public  eneniies.^^ 

§  1956.  Bute  of  damages.  In  an  action  against  carriers, 
the  rule  of  damages  is  the  value  of  the  goods  at  the  ])ort  of  de- 
livery, and  not  the  invoice  price,  or  the  value  at  the  port  of 
shipment.'^'*  A  common  carrier  for  hire  is  liable  for  punitive 
damages  for  a  gross,  willful,  and  tortious  breach  of  the  duty 
enjoined  upon  him  by  law.^^  A  principal  is  liable  for  the  actual 
damage  caused  by  the  act  of  his  agent  done  in  the  usual  course 
of  his  employment,  but  is  not  responsil)le  for  wanton  and 
malicious  damage  done  by  the  agent  without  tlio  consent,  ap- 
proval, or  subsequent  ratification  of  the  principal.^^ 

4  Zabr.  697;  64  Am.  Dec.  304;  Edw.  on  Bailm.  454;  Ang.  on  Carr., 
§  156;  Michaels  v.  N.  Y.  Cent.  R.  R.  Co.,  30  N.  Y.  564;  86  Am.  Dec. 
415;  Shear  v.  Wright,  60  Mich.  l.")9;  Slater  v.  Railway  Co.,  29  S.  C. 
96;  Norris  v.  Railway  Co.,  23  Fla.  182;  11  Am.  St.  Rep.  3.55;  Railway 
Co.  V.  McKenzie,  75  Md.  458. 

51  rolack  Y.  Pioche,  35  Cal.  416;  95  Am.  Dec.  115;  see  Fay  v.  Pac. 
Imp.  Co.,  93  Cal.  255;  27  Am.  St.  Rep.  198;  Ryan  v.  Rogers,  96  Cal. 
349. 

52  Zeigler  v.  Wells,  Fargo  &  Co.,  23  Cal.  179;  83  Am.  Dec.  87. 
53Merritt  v.  Earle,  29  N.  Y.  115;  86  Am.  Dec.  292;  Civil  Code, 

§§  2194,  2195;  Palmer  v.  Railroad  Co.,  101  Cal.  187;  46  Am.  St.  Rep. 
117;  Evansville,  etc.,  R.  R.  Co.  v.  Keiter,  8  Ind.  App.  57. 

54  Ringgold  v.  Haven,  1  Cal.  108;  see,  also,  Denver,  etc.,  R.  R.  Co. 
V.  Fi-ame,  6  Col.  382;  Echols  v.  Rjiilroad  Co.,  90  Ala.  366. 

55  Mendelsohn  v.  The  Analieim  Lighter  Co.,  40  Cal.  657. 

S6Id. 


965  COMMOX  CAERIERS.  §§  1957-1959 

§   1957.  For  loss  of  baggage. 

Form  No.   490. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,  IS. .,  the 

defendant  was  a  common  carrier  of  passengers  and  their  bag- 
gage, by  [stage  coach],  from   to    , 

for  hire. 

II.  That  on  that  day  he  received  into  his  [coach]  the  plaintiff 
with  his  baggage,  to-\vit  [designate  baggage],  of  the  value  of 

dollars,  to  be  carried  from  said to 

,  for dollars,  then  paid  to  the  de- 
fendant [or  for  him]. 

III.  That  the  defendant  did  not  use  proper  care  therein,  but, 
by  the  negligence  and  improper  conduct  of  him  and  his  ser- 
vants, said  baggage  was  wholly  lost,  to  the  damage  of  the  plain- 
tiff   dollars. 

[Demand  of  Judgment.] 

§  1958.  Acceptance  of  goods.  To  charge  a  carrier,  there 
must  be  an  acceptance  of  the  goods,  either  in  a  special  manner, 
as  by  "  checking,"  or  according  to  the  usage  of  their  business.^^ 

§  1959.  Baggage,  what  is  and  liability  for.  The  bag- 
gage of  a  'passenger  intrusted  to  one  whose  business  it  is  to 
transport  persons  and  their  baggage,  and  with  whom  the  ow  net 
has  embarked,  is  under  the  same  protection  as  the  goods  are 
which  are  intrusted  to  a  common  carrier  of  goods/'^'''  The  jury 
are  to  determine  what  constitutes  baggage  under  the  circum- 
stauce«.     A  sum  of  money  reasonably  necessary  to  defray  the 

57  Story  on  Bailm.,  §  5.3.'?;  Anj?.  on  Carr.,  §  140;  Selway  v.  Holloway, 
1  J  A.  Raym.  40;  Cohbnu  v.  Downe,  .5  Esp.  41;  Tower  v.  TTtica,  etc., 
R.  R.  Co.,  7  Hill,  47;  42  Am.  Dec  3(1;  Boehm  v.  Combo,  2  Mau.  & 
S.  172;  Rail  v.  \.  .1.  Stcnmlwat  Co.,  1  Daly,  401;  East  Line,  etc., 
R.  R.  Co.  V.  Hall,  ni   T<'\-.  (11 C. 

n«Mc'iTill  V.  rJrinm'll,  .30  X.  Y.  .'!t4;  Oakos  v.  TJailrond  Co.,  20 
Orofr.  302;  23  Am.  St.  Rpp.  120;  Sliaw  v.  Railroad  C^>.,  4<)  :\Iimi.  144; 
Isaacson  v.  Railroad  Co.,  04  X.  Y.  27S:  40  Am.  Rcp-  1^--  As  to 
the  duty  of  farriers  by  water  Avitli  rcspi'ct  to  bairjiasc  of  ]ias- 
senpfrs.  soo  Morrill  v.  Criiiiicll,  id.;  Cli:imb<'r!aiii  v.  ^Vost.  Transp. 
Co..  4r,  Rarb.  21S;  M\id;r<.ft  v.  R.ay  Stato  Stoaml»OMt  Co..  1  Daly. 
15^•,  Clasoo  V.  Xow  York  Cont.  R.  R.  Co..  30  Rarb.  .5.";  Cilliooly  v 
Now  York  i<c  Savannah  S.  N.  Co.,  1  Daly,  197;  see  Cal.  Civil  Code, 
5§  2180-2183. 


^§  r.H)0-1002  FOKMS   OF    COMl'LAl>sTS.  966 

expenses  ol'  the  journey  is  properly  baggage;  this  depends  upon 
the  length  of  the  journey,  and  to  some  extent  the  wealth  oi'  the 
traveler,  and  it  includes  such  an  allowance  for  accident  or  sick- 
ness, and  for  sojourning  by  the  way,  as  a  reasonable,  prudent 
man  would  consid(!r  it  necessary  to  make.  ]t  should  be  lim- 
ited to  money  for  traveling  expenses,  properly  so  called.^''  And 
the  carrier  is  responsible  for  the  loss  of  money  in  a  passengers 
trunk  to  the  extent  of  reasonable  traveling  expenses/'*^  Kut  not 
for  jewelry  belonging  to  a  third  person. "^^  The  Civil  Code  of 
California  (§  "-ilSl),  declares  that  luggage  may  consist  of  any 
articles  intended  for  the  use  of  a  passenger  while  traveling,  or 
for  his  personal  equipment. 

§  1960.  Baggage,  retaining  custody  of.  The  carrier  of 
passengers  by  steamboat  is  not  exonerated  from  responsibility 
for  the  personal  baggage  of  a  passenger,  by  the  fact  that  the 
passenger  deposits  it  in  the  state-room  occupied  by  him,  of 
which  he  has  the  key,  and  from  which  it  is  stolen.®^  So,  a 
mere  supervision  of  one's  baggage  will  not  relieve  from 
responsibility.^^ 

§  1961.  Money  stolen.  The  owners  of  a  steamboat  are  not 
liable  for  money  stolen  from  the  pockets  of  a  passenger,  it  not 
being  proved  it  w^as  stolen  by  persons  employed  on  board.®^ 

§  1962.  Allegation  of  route.  It  is  not  deemed  necessary 
to  state  the  whole  route  of  the  defendants.  That  they  were  car- 
riers between   and   is  sufficient.^ 

59  Men-ill  v.  Grinncll,  30  N.  Y.  5JM. 

60  Id. 

61  Richards  v.  Woscott,  7  Bosw.  0.  As  tO'  what  shall  be  included 
in  the  term  "  bapsase,"  see  Metz  v.  Railroad  Co.,  8.j  Cal.  329;  20 
Am.  St.  Rep.  228. 

62Hollister  v.  Nowlen,  19  Wend.  2.30:  32  Am.  Dec.  455;  Burgess 
y.  Clements,  4  Man.  &  S.  310:  Tower  v.  TTtica,  etc.,  R.  R.  Co.,  7 
Hill,  47;  42  Am.  Dec.  30;  Mudgett  v.  Bay  State  Steamboat  Co.,  1 
Daly.  1.51. 

63  Lonfrchamp  v.  Fish,  2  Bos.  &  P.  410. 

64  Abljott  V.  Bradstreet,  55  Me.  530. 

65  See  Clark  v.  Faxton,  21  Wend.  1.53;  78  Am.  Dec.  126;  Davis  v. 
Jacksonville  S.  E.  Line,  120  Mo.  09;  Fort  Worth,  etc..  Railway  Co. 
v.  McAnulty,  7  Tex.  Civ.  App.  321. 


967  COMMON-  CAKKIERS.  §§  1963-1965 

§  1963.  Vehicle.  A  common  carrier  is  absolutely  bound, 
irrespective  of  negligence,  to  provide  roadworthy  vehicles.*^ 

§  1964.  Against  carrier  by  water,  for  negligence  in  loading 
cargo. 

Form  No.  491. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18 . . ,  at 

,  the  plaintiff,  at  the  request  of  the  defendant, 

caused  to  be  delivered  to  him  [designate  the  goods]  of  the 
plaintiff,  of  the  value  of dollars,  to  be  by  the  de- 
fendant safely  and  securely  loaded  on  board  a  certain  vessel  at 

,  for  the  plaintiff,  for  a  reasonable  compensation 

to  be  paid  said  defendant  therefor;  and  the  defendant  then 
received  the  goods  for  that  purpose. 

II.  That  the  defendant  afterwards,  by  himself  and  his  ser- 
vants, conducted  so  carelessly  and  improperly  the  loading  of 
the  said  goods  on  board  the  said  vessel,  that  by  their  negligence 
and  improper  conduct  the  goods  were  broken  and  injured,  and  a 
part  thereof  wholly  destroyed,  to  the  damage  of  plaintitf  in 
dollars. 

[Demand  of  Judgment.] 

g  1965.  steam-tugs.  The  towing  a  vessel  out  to  sea  by  a 
steamer  is  the  transportation  of  property,  so  as  to  bring  the  case 
within  the  law  of  common  can-iers.^'^  And  the  fact  that  the 
owner  of  the  ship  lost  while  Ijeing  towed  out  to  sea  was  the 
agent  of  the  owners  of  tlie  steam-tug,  does  not  relieve  the  latter 
from  the  obligations  under  whicli  they  contract  with  others."® 
Where  defendant  undertook  to  tow  ])laintiff's  schooner  and  a 
Spanish  bark  from  Xew  Orleans  to  the  (uilf  of  ^lexico,  in  con- 
sequence of  the  bad  steering  of  tiic  bark  by  its  own  men,  it 
broke  loose  from  the  tow-boat  and  damaged  tlie  schooner;  it  was 
held  that  defendants  were  liable  as  carriers.™ 

aeAldon  v.  New  York  Cont.  H.  11.  Co.,  LMl  N.  Y.  102;  H'2  .\in.  Doc. 
401;  St.  Louis,  etc.,  IJ.  H.  To.  v.  Valirins,  r^C,  lad.  .".11;  rciina.  Co. 
v.  Roy.  102  II.  S.  4.-.1;  Civil  C<xlo.  8fi  21 S4.  21  sr,. 

67Wliito  v.  Tup  MaiT  Ann,  r,  Ciil.  4(;2;  r,r>  Am.  ])>'<-.  r,-2:\:  lint  see 
Hayes  v.  Millar,  77  I'cnn.  St.  2.'',«;  IH  Am.  ICi-p.  H">:  Varble  v. 
BIploy.  14  Bush,  f.riR;  20  Am.  M>'\>.  4?..-. 

68  Id. 

eeClapp  v.  Stnnton,  20  I,.i.  .\iiii.   \U'>:  '."J  Am.  l>i'c.  417. 


§§  lOC.O,  1!)07  roK.Ms  OK  oomi'laixts.  968 

3  1966.  Against  carrier  for  not  regarding  notice  to  keep  dry. 

Form  No.   .H)2. 
[Title.] 
The  plaintiir  complains,  and  alleges: 

I.  That   on  the    day   of    ,   18..,   at 

,  at    the  port  of    ,   the   defendant 

was  master  and  commander  of  a  certain  vessel  known  as  the 

,  then  lying  at  said  port,  and  the  j)laintilt'  caused 

to  bo  shipped  on  board  said  vessel  certain  [describe  the  goods], 
the  i)roperty  of  the  ])laintill',  of  the  value  of dol- 
lars, which  said  goods  wero  then  in  good  oi'dcr  and  condition-, 
in  consideration  whereof,  and  of  the  sum  of dol- 
lars, then  and  there  paid  by  the  plaintit!  to  the  defendant,  the 
defendant  then  and  there  promised  carefully  and  safely  to  carry 

and  transport  said  goods  to ,  and  there  safely  to 

deliver  them  to  ,  dangers  of  the  seas  only  ex- 
cepted, and  then  and  there  received  said  goods  for  that  purpose. 

II.  That  the  plaintiff  then  and  there  caused  due  notice  to  be 
given  to  the  defendant  that  it  was  necessary  to  the  preservation 
of  said  goods  that  they  should  be  kept  dry. 

III.  That  the  defendant  failed  to  take  care  of  or  safely  to 
carry  said  goods;  but,  on  the  contrary,  not  regarding  his  said 
promise,  so  negligently  and  carelessly  carried  the  same  that 
they  became  wet,  and  thereby  entirely  destroyed  [or  otherwise 
state  injury  according  to  facts];  which  injury  was  not  occa- 
sioned by  reason  of  any  danger  of  the  seas,  but  wholly  through 
the  negligence  of  the  defendant  and  his  servants,  by  reason 

whereof  the  plaintiff  was  injured  to  his  damage 

dollars. 

[Demand  of  Judgmext.] 

§  1967.  Damage  to  cargo.  In  a  case  of  damage  to  cargo, 
where  the  libel  alleges  the  fault  of  the  master  to  be:  1.  That 
he  falsely  represented  his  vessel  to  be  tight,  staunch,  and  sea- 
worthy; and  2.  That  the  danger  resulted  from  the  master's  care- 
lessness, negligence,  and  improper  conduct;  the  libelant  can  not 
claim  another  specific  ground  of  complaint  not  s(>t  up  in  the 
libel,  e.  g.,  that  the  damage  was  caused  by  the  fault  of  the 
master  in  not  putting  into  some  other  port  to  repair  his  vessel, 
and  take  measures  to  preserve  his  cargo.''''' 

70  Soule  V.  The  Bark  "  Oregon,"  1  Newb.  .504. 


009  COililON   CARRIERS.  §§  1968-1971 

s  1968.  Notice  in  writing.  If  the  carrier  have  notice,  by 
writing  on  the  article  or  package,  of  the  need  of  peculiar  care, 
he  is  bound  to  compl}^  with  such  directions.'^^ 

§  1969.  For  loss  in  unloading. 

Form  No.  493- 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  [As  in  form  No.  492.] 

II.  [As  in  form  No.  492.] 

III.  That  said  vessel  afterwards  safely  arrived  at , 

and  no  [excepted  perils]  prevented  the  safe  carriage  or  delivery 
of  the  goods. 

IV.  That  the  defendant  did  not  deliver  the  said  goods  to  the 
plaintiff;  and  for  want  of  due  care  in  the  defendant  and  his 
servants  in  unloading  and  delivering  said  goods  from  said  ves- 
sel, they  were  broken  and  injured,  and  were  wholly  lost  to  the 
plaintiff,  to  his  damage dollars. 

[Demand  of  Judgment.] 

§  1970.  Mixing  goods.  Where  defendant,  without  notify- 
ing the  consignees,  unloading  coal  upon  the  bare  ground,  and 
so  carelessly  that  different  sorts  were  mixed  together  with  the 
soil,  the  defendant's  liability  did  not  cease  until  he  had  un- 
loaded the  coal  with  due  care,  and  put  it  in  a  reasonably  safe 
place.'^^ 

§  1971.  Against  common  carrier,  for  failure  to  deliver  at  time 
agreed. 

Form  No.  494. 

[Title.] 

The  plaintiff  com})lains,  and  alleges: 

I.  That  the  defendant  is  a  corporation  duly  organized  I'ndcr 
and  pursuant  to  the  laws  of  this  state,  and  at  the  tinu's  herein- 
after mentioned  was  a  common  carrier  of  goods,  for  hire,  be- 
tween   and   

IT.   That  on  ilic    day  of    IS.  .,  at 

tJK'    ])l;iinjiir   delivered    to    the   defendant    |  do- 

71  See  I'.axtcr  v.  I-el.iinl,  1  Alih.  Adin.  .'US;  ^.■lsfiIl^:s  v.  Tepper. 
11  riok.  41:  nnd  S:i.!,'er  v.  I'orlsiiKiiilli.  .-l.'..  K.  H.  Co..  :U  Me.  liL'S; 
50  Am.  I)ee.  (i.^>!t. 

72l{if'o  V.  P.dsloii  »V  ^\■()I•(■est.■l■  H.  It.  ("(».,  Its  Mass.  LML';  rco 
Chifntro  \-    Alton    It.    I{.   fo.   v.   Srolt,    VI   III.    LTJ. 

Vol.  1—122 


§  1972  FOKMt.    OF    COMI'LAIXTS.  970 

scribe  goods],  of  the  value  of dollars,  the  prop- 
erty of  the  plaiutilf,  which  the  defendant,  in  consideration  of  a 
reasonable  compensation  to  be  paid  it  by  the  plaintilV,  agreed 

safely  to  cany  to '.  .'  '^ii*^  there  deli\er  to  the  plain- 

tilf,  on  or  before  the day  of 

III.  That  the  defendant  did  not  fuKill  its  agreement  safely 

to  carry  the  same,  and  to  deliver  them  in on  said 

day;  but,  on  the  contrary,  although  tlie  period  between  the 
said  |(lay  when  received  by  defendant]  and  said  [day  when 
they  should  have  been  delivered]   was  a  reasonable  time  for 

carrying  the  sa.iie  from    to    ,  yet 

the  defendant  so  negligently  and  carelessly  conducted,  and  so 
misbehaved  in  regard  to  the  same,  in  its  calling  as  common 

carriers,  that  it  failed  to  deliver  the  same  in until 

the day  of ,18.. 

IV.  That  the  market  value  of  said  goods  in  [place  of  de- 
livery] on  the  [day  agreed]  was dollars,  but  on 

the   [day  of  actual  delivery]   was  only    dollars; 

and  that  by  reason  of  the  premises  the  plaintiff  was  damaged 
in dollars. 

[Demand  of  Judgment.] 

§   1972.    Breacli    of    contract    to    deliver.  A  common  car- 

rier becomes  charged  on  his  contract  immediately  upon  his 
failure  to  carry  and  deliver  as  agreed.'^^  The  fact  that  the  con- 
signee's business  address  was  stated  in  the  bill  of  lading  does  not 
oblige  the  shipper  to  depart  from  his  known  and  usual  place  of 
delivery,  and  deliver  a  cargo  at  a  pier  more  continguous  to  the 
consignee's  place  of  business.'^'*  Delivery  of  goods  by  a  earner 
to  a  wrong  person  by  mistake,  or  by  gross  imposition,  ■will  not 

73  Jones  V.  Wells,  Fargo  &  Co.,  28  Cal.  2.59.  Where  the  complaint 
in  an  action  to  recover  damages  for  the  alleged  failure  of  a  rail- 
road company  to  transport  and  deliver  within  a  reasonable  time 
is  in  the  usual  form  employed  in  connnon-law  actions  ex  contractu, 
it  is  not  subject  to  a  general  demurrer  on  the  ground  that  the 
complaint  should  have  specified  what  Avas  a  reasonable  time  for 
the  transportation  of  the  goods,  and  in  the  absence  of  a  special 
demurrer  directed  to  that  point,  the  general  allegation  of  a  failure 
to  transport  and  deliver  within  a  reasonable  time  is  sufficient. 
Palmer  v.  Atchison,  etc.,  R.  Jl.  Co.,  101  Cal.  187. 

74  Rowland  v.  Miln,  2  Hilt.  IHO;  Ostrander  v.  Brown,  15  Johns. 
39;  8  Am.  Doc.  211;  Gibson  v.  Culv(>r.  17  Wend.  30.5;  31  Am.  Dec. 
297;  Western  Trans.  Co.  v.  Ilawiey,  1  Daly,  327;  see  Cal.  Civil  Code, 
§§  2118,  2119. 


971  COMMOX  CARRIERS.  §§  1973-1975 

discharge  his  responsibility  to  the  owner  for  the  value  of  the 
goods."'^ 

§  1973.  Alleg-ation  of  demand.  Where  a  demand  is  neces- 
sary to  perfect  plaintiff's  title,  it  must  be  averred.™ 

§   1974.  Against  carrier  on  special  contract  for  loss  of  goods. 
Form  A'o.   495. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  a  corporation  created  by  and  under 
the  laws  of  this  state,  and  at  the  times  hereinafter  mentioned, 
being  such  corporation,  was  a  common  carrier  of  goods  for  hire 
between and 

II.  That  on  the    day  of   ,   18..,  at 

,  the  plaintiff'  deUvered  to  the  defendant,  being 

such  corporation,  certain  goods,  the  property  of  the  plaintiff, 
to-wit  [describe  the  goods],  of  the  value  of dol- 
lars, and  in  consideration  of  the  sum  of dollars 

paid  defendant  by  the  plaintiff,  the  defendant  then  and  there 
entered  into  an  agreement  with  the  plaintiff  in  writing,  sub- 
scriljed  by  the  defendant  thereunto  lawfully  authorized  l)y  its 
agent,  of  which  agreement  the  following  is  a  copy  [copy 
agreement] . 

III.  That  the  defendant  did  not  safely  carry  and  dolivor  said 
goods  pursuant  to  its  said  agreement;  but  so  negligently  and 
carelessly  conducted  and  misbehaved  in  regard  to  the  same, 
that  the  said  goods  were  wholly  lost  to  the  plaintiff,  to  his 
damege dollars. 

[Demand  of  Juixj.mext.] 

§  1975.  Common  carriers  and  forwarders.  l\ailroad  com- 
panies, as  common  carriers,  may  make  vnlid  contracts  to  carry 

TR  Adams  v.  P.lnnkonsfoin,  2  Cal.  4i;'.;  ."lO  Am.  Doo.  :?.'();  Sword  v. 
Younj;,  89  Tonn.  12(5;  McCulIock  v.  McDonald,  m  Iiid.  240;  South. 
Ex.  Co.  v.  Van  Meter,  17  Fla.  783;  R.")  Am.  Rop.  IHT.  Rut  non- 
dolivpr5'  by  a  carrier  is  o.xcusod  wlion  tlio  consignor  exorcises  liis 
ripht  of  stopf)ase  in  transitu-  Newliall  v.  Hailroad  Co.,  .'1  Cal.  '.\A'>; 
21  Am.  Rop.  71.3:  and  soo  Rraslier  v.  Railroad  Co.,  12  Pol.  384. 
So,  if  tlio  poofls  1)0  niisdire(te<l,  jind  sf)lely  for  this  reason  are  do- 
livorod  to  tlio  wron^  jjorsoii  Ity  the  carrier,  it  is  not  liable.  Lal<e 
Shore,  etc.,  R.  U.  Co.  v.  Ib»dai)p,  8:5  I'enn.  St.  22.  So,  if  tlie  carrier 
delivers  the  fxnoi]^  to  a  wroii;:  person  on  written  ;m(li(>rity  frotn  tlio 
consitrnoo,  tlio  consi;rnor  c.-m  not  liold  the  carrier  lialiie  tlierefor. 
Dobbin  V.  Railroad  Co.,  .".<;  Misc.  .".22. 

7fi  Bristol  V.  Rensselaer  iV:  S:iiatoL':i   R.  It.  ("m..  ;•  r.:irb.   ir»S. 


g   llCll  KDKMS    OV    COMl'l.AlN'TS,  973 

passergors  or  Troiglit.  beyond  the  limit  of  ilieir  own  road,  either 
by  liuul  or  water,  and  in  this  way  beeome  liable  I'or  the  acts  and 
neglects  of  other  carriers  which  are  in  no  sense  under  their  con- 
trol/" The  liabilities  ol'  common  carriers  and  forwarders,  in- 
dependent of  any  express  stipulations  in  the  contract,  are  en- 
tirely different.'^**  Where  the  defendants,  being  both  carriers 
and  forwarder,  took  goods  in  pursuance  of  a  previous  oral 
agreement  to  carry,  and  gave  a  receipt  for  the  goods,  expressing 
that  they  were  reeoived  "  to  be  forwarded,"  it  was  held  that 
they  were  liable  as  carriers."'*  A  petition  alleging  that  the 
defendant  was  a  common  carrier  engaged  in  shipping  cattle 
to  and  from  points  in  Texas,  and  by  means  of  connecting 
lines,  to  Chicago,  and  that  defendant  accepted  cattle  from 
plaintiff  for  shipment  to  Cairo,  and  thence  to  Chicago,  for 
a  certain  compensation,  in  the  absence  of  special  exceptions, 
sufficiently  charges  a  contract  of  through  shipment.*^"  But  it 
is  sufficient  if  the  complaint  in  an  action  against  a  railroad 
company  brought  on  a  special  contract  to  transport  goods 
beyond  its  own  line,  sets  out  the  contract,  and  its  breach  by 
the  defendant,  and  it  is  unnecessary  io  allege  that  the  defend- 
ant was  a  common  carrier.^^ 

§    1976.      Special     contract  —  limiting     liability.        A  carrier 

may  contract  against  loss  from  fire  not  caused  by  his  own  neg- 
ligence.^^ By  a  contract  for  carriage  of  live-stock,  the  owner 
took  the  risks  of  a  damage  "  in  unloading,  conveyance,  and 
otherwise,  whether  arising  from  negligence  or  otherwise."  The 
bottom  of  the  car  dropped  out;  it  was  held  that  if  the  car  v/as 

77  Wheeler  v.  S.  F.  &  A.  R.  R.  Co.,  31  Cal.  40;  89  Am.  Dec.  147. 

78  Hooper  V.  Wells,  27  Cal.  11;  85  Am.  Dec.  211;  and  see  §  194.5, 
ante;  Harris  v.  Howe,  74  Tex.  534;  15  Am.  St.  Rep.  802;  Harris  v. 
Railroad  Co.,  15  R.  I.  371;  Myrick  v.  Mich.,  etc.,  R.  R.  Co.,  107 
U.  S.  102. 

79  Blossom  V.  Griffin,  13  N.  Y.  569;  07  Am.  Dec.  75;  and  see 
McCotter  v.  Hooker,  8  id.  497.  An  agreement  "  to  forward  "  goods 
may,  in  some  circumstances,  comprehend  a  stipulation  to  carry 
and  deliver  them  beyond  the  defendant's  own  line.  Davis  v. 
Jacksonville  S.  E.  Line,  126  Mo.  09;  but  compare  Dunbar  v. 
Railway  Co..  36  S.  C.  110;  31  Am.  St.  Rep.  800. 

wiFort  AVorth,  etc.,  Railway  Co.  v.  McAnulty,  7  Tex.  App.  321. 

81  Dunbar  v.  Railroad  Co.,  36  S.  O.  110;  31  Am.  St.  Rep.  800 

82  N.  O.  Mut.  Ins.  Co.  v.  N.  O.  J.  &  G.  N.  R.  R.  Co.,  20  La.  Ann. 
302;  Van  Schak  v.  Transp.  Co.,  3  Biss.  394;  Railroad  Co.  v.  Gilbert, 
88  Tenn.  430. 


973  COMMON    CARRIEES.  §  1976 

■unfit  the  carrier  was  liable.^"^  Restrictions  on  the  common-law 
habihty  of  a  common  carrier,  inserted  for  his  benefit  in  a  receipt 
drawn  by  himself,  and  signed  by  liim  alone,  for  goods  intrusted 
to  him  in  such  capacity,  are  construed  most  strongly  against 
the  common  carrier.**'*  The  words,  "  not  to  be  responsible  ex- 
cept as  forwarder,"  in  a  common  carrier's  receipt,  do  not  ex- 
empt him  from  liability  for  loss  of  goods  occasioned  by  the  care- 
lessness or  negligence  of  the  employees  of  a  steamboat,  owned 
and  controlled  by  other  parties  than  the  can-ier,  but  ordinai'ily 
used  by  him  in  his  business  of  carrier  as  a  means  of  convey - 
ance.^^  When  a  special  contract  is  made  with  a  carrier,  he  be- 
comes as  to  that  transaction  an  ordinary  bailee  and  a  private 
carrier  for  hire^®  The  common  carrier's  liability  for  loss  occa- 
sioned by  negligence  in  the  agents  he  employs  will  not  be 
restricted,  unless  the  intention  to  thus  exonerate  him  is  ex- 
pressed in  the  instrument  in  plain  and  unequivocal  tenns.^^ 
If  there  be  a  special  contract  varying  the  liability  of  l^he  car- 
rier, the  action  is  properly  brought  on  the  special  contract  and 
not  on  the  general  liability.^^  Thus,  if  an  owner  of  goods  when 
he  delivers  them  to  a  common  carrier  for  shipment  receives  and 
accepts  a  bill  of  lading  therefor  containing  a  stipulation  against 
the  carrier's  liability  for  loss  by  fire,  and  the  goods  are  so  de- 
stroyed, an  action  against  the  carrier  for  their  loss  is  proi)erly 
instituted  on  the  contract  and  not  on  tbe  common-law 
liability.®^     And  it  is  held  that  the  burden  of  proof  in  such 

83  Hawkins  v.  Great  West.  It.  R.  Co.,  17  Mich.  r>7;  07  Am.  Dec. 
179. 
M  Hooper  V.  Wells,  Farpo  &  Co.,  27  Cnl.  11;  85  Am.  IH'c  211. 

fODorr  v.  New  Jersey  .S.  X.  Co.,  11  X.  Y.  400:  ('.2  Am.  Doe.  12r>; 
Moriarty  v.  Haruden's  Express  Co.,  1  Daly,  227;  Duubar  v.  Railroad 
Co.,  30  S.  C.  110;  31  Am.  St.  Rep.  800. 

«7  Hooper  v.  Wells,  Farpo  <S:  Co..  27  Cal.  11:  S.".  Am.  ]>ec.  211; 
Nicholas  v.  Ilailntad  Co.,  80  N.  V.  .".7i>.  As  to  the  power  of  com- 
mon carrier  of  Lroods  to  limit  his  responsibility  by  si>eeial  contract, 
see  Price  v.  Hartshorn.  44  Rarb.  (">.">;  Lee  v.  Marsh,  41  id.  102; 
S.  C,  28  How-  Pr.  27r»:  Meyer  v.  Haruden's  E.xpress  Co.,  24  id.  2!>0; 
Heineman  v.  Grand  Trtmlc  R.  R.  Co..  31  id.  4.30:  Moriarty  v. 
Harnden's  Express  Co.,  1  Daly.  207;  see  Cal.  Civil  Code,  §8  2174- 
2170:  S  1947,  ante  As  to  <-!irrlat:e  of  live-stod;.  sec  St.  Lonls,  et<'., 
R.  K.  Co.  v.  Weakly.  ."O  Ark.  .307:  7  Am.  St.  Kcp.  mi;  ill.  Cent. 
R.   R.  Co.  V    Scrn>r>-'8,  00  Miss.  418;   S   101.3,   „iiti-- 

esRroaz  v.  Cent.  R.  R.  Co.,  87  Ca.  403. 

SO  Indianapolis,  etc.  R.'iihvay  Co.  v.  Forsythe.    I   IikI.  .\pii.  320. 


i;  I'.f;?  FORMS   OF   COMPLAINTS.  974 

au  action  would  bo  ou  tlio  owiici'  to  establish  negligouce/'*'^ 
It  is,  however,  held,  that  the  existence  of  a  special  contract 
for  the  shipment  of  goods,  with  certain  stipulations  therein 
exempting  the  carrier  from  liability,  is  no  obstacle  to  the  nuiin- 
tenance  of  an  action  of  tort  based  on  his  legal  duty  and  a 
breach  tliereof  by  negligence.'-^^  Tort  is  the  ratural  and  habitual 
foundation  of  the  action  for  the  breach  of  the  ordinary  con- 
tract of  carriage,  and  the  complaint  or  declaration  will  be 
so  construed,  unless  the  facts  of  the  case  clearly  show  that  the 
plaintiff  has  elected  to  sue  on  the  coutract.*^^ 

§  1977.  Sunday  contract.  In  Massachusetts,  a  contract 
made  in  violation  of  Sunday  is  void,  and  no  subsequent  ratifica- 
tion will  sustain  an  action  upon  it.**^  But  the  rule  laid  down  in 
New  York  does  not  exempt  the  carrier  from  his  liability  for  the 
loss  upon  a  contract  under  the  Sunday  laws  of  New  York,  be- 
cause it  is  made  on  Sunday.  To- render  it  invalid,  it  is  neces- 
sary that  the  contract  should  require  the  work  or  labor  agreed 
for,  to  be  performed  on  Sunday.  To  entitle  the  plaintiff  to 
recover  against  the  carrier,  it  is  immaterial  whether  the  contract 
is  good  or  bad.  The  liability  of  the  carrier  is  imposed  by  law, 
and  does  not  rest  on  his  contract.^'*  The  making  of  a  contract 
on  Sunday  is  not  labor  within  the  prohibition  of  Sunday  laws, 
nor  was  it  prohibited  by  common  law.^^    And  a  valid  contract 

sold.;  Witting  v.  Railroad  Co.,  101  Mo.  G31;  20  Am.  St.  Rep.  63G; 
Piatt  V.  Railroad  Co.,  108  N.  Y.  358;  Steamship  Co.  v.  Smart,  107 
Penn.  St.  492;  St.  Louis,  etc.,  R.  R.  Co.  v.  Weakly,  50  Ark.  397; 
7  Am.  St.  Rep.  104.  But  the  opposite  view  is  maintained  in  some 
of  the  states,  see  Hull  v.  Railroad  Co.,  41  Minn.  510;  IG  Am.  St. 
Rep.  722;  Western  Railway  v.  Harwell,  91  Ala.  340;  Railroad  Co. 
V.  Bigger,  66  Miss.  319;  Chicago,  etc.,  R.  R.  Co.  v.  Manning,  23 
Neb.  552. 

91  Nicoll  V.  Railway  Co.,  89  Ga.  2G0. 

92Whittenton  Mfg.  Co.  v.  Packet  Co.,  21  Fed.  Rep.  89G. 

93  Day  V.  :McAllister,  15  Gray,  433.  But  the  indorser  of  a  note 
is  estopped,  in  an  action  thereon,  to  deny  the  validity  of  a  note 
because  it  was  executed  by  the  maker  on  Sunday.  PrescQtt  Nat. 
Bk.  V.  Butler,  1.57  Mass.  .548. 

94  Edw.  on  Bailm.  460;  Allen  v.  Sowall,  2  Wend.  327;  Ilollister 
V.  Nowlen,  19  id.  329;  32  Am.  Dec.  455;  1  Chit.  1;  Merritt  v.  Earle, 
29  N.  Y  115;  8G  Am.  Dec.  292;  and  see  Costello  v.  Ten  Eyck,  80 
Mich.  348;  24  Am.  St.  Rep.  128. 

»6  Horack  v.  Keebler,  5  Neb.  355. 


975  COMMON    CARRIERS.  §  1978 

may  be  made  on  that  day  for  the  performance  of  labor,  provided 
the  labor  is  not  to  be  performed  on  Sunday.'**' 

§  1978.  Against  telegraph  company  for  failure  to  transmit 
message  as  directed. 

Form  No.  496. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is  a  corporation  organized  and  doing 
business  under  the  laws  of  the  state,  and  is,  and  at  all  times 
hereinafter  mentioned  was,  engaged  in  the  business  of  tole- 
giaphing  for  hire. 

II.  That    on    the    day    ,   18..,   the 

plaintiff  presented  to  the  defendant,  at  its  office  in , 

the  following  message,  to-wit: 

"  John  Doe,  San  Francisco.  Buy  one  hundred  tons  of  wheat. 
James  Roe  "  (the  plaintiff'). 

Which  message  defendant  received  and  promised  to  forward 
by  telegraph  to  said  John  Doe  in  San  Francisco.  That  in  con- 
sideration thereof  the  plaintiff  paid  the  defendant 

dollars. 

III.  That  on  account  of  the  negligence  of  the  defendant  said 
message  w^as  not  transmitted  as  written  by  plaintiff,  hut  was  sent 
and  delivered  to  said  John  Doe  so  as  to  read  as  follows: 

"  John  Doe,  San  Francisco.  Buy  five  hundred  tons  of  wheat. 
James  Roe." 

IV.  That  said  John  Doe,  in  pursuance  of  said  message  so  de- 
livered to  him,  bought  five    hundred  tons  of  wheat  for  the 

account  of  the  plaintiff;  that  immediately  on  learning  the  error 
in  said  telegram,  plaintiff  notified  defendant  of  the  sanio.  and 
that  through  said  error  four  hundred  tons  of  wheat  had  \)cvn 
bought  more  than  was  directed  to  1)0  l)ought  by  the  original 
message  written  by  the  plaintitV,  and  jihiintilT  asked  inslruotions 
from  defendant  relative  to  the  disposition  of  said  four  hundred 
tons;  the  defendant  refused  to  take  any  notice  thereof  or  give 
any  instructions  concerning  said  wbi^ar,  and  the  ])laintiff  there- 
upon sold  the  same  at  San  Francisco,  on  the day  of 

,  IS.  .,  at  the  highest  niarki't  rat<'. 

on  .Johnson  v.  Brown.  K!  Knn.  ."20:  l?!onni  v.  Itich.nnls.  2  Ohio 
St.  .387.  A  rontrnft  nimh'  011  SiUKhiy.  for  the  IrMiismissIon  imd 
dplivf-ry  of  a  tch-^'niin  from  oiu'  brother  to  Miiotht-r.  Mnnoiiiiciiiir  the 
dpatli  of  thnir  fntlicr.  is  not  voi<1  umh-r  the  .M.-ihii  111:1  ('<Mh'.  S  MW. 
Western  Tiiioii  Tfl.  <'o.  v.  Wils(»ii.  !».'{  .Mm.  ;'.2:  :'.o  .\iii.  St.  \U-\>.  'Si. 


§  l'.)T8a  roKMs  of  complaints.  976 

y.  That  the  price  paid  by  said  plaintilT  for  said  wheat  was 

dolhirs,  and  plaintill'  was  c()iii})ellcd  to  i)ay  the 

further  smu  of dollars  commissions  on  said  pur- 
chase; that  plaintiff  sold  said  wheat  for   dollars, 

and  was  compelled  to  pay dollars  commissions  on 

said  sale. 

[Demand  of  Judgment.] 

Sufficiency  of  complaint  or  petition  in  action  against  telegraph 
company  for  failure  to  transmit  or  for  delay  in  delivery  of  mes- 
sage.^'  A  declaration  against  a  telegraph  company  for  refusing  to 
transmit  a  message,  should  allege  that  such  refusal  was  willful  or 
wrongful,  or  contain  an  allegation  of  facts  showing  such  willful- 
ness or  wrongfulness.'-^^  And  if  such  declaration  contains  no 
allegation  to  the  effect  that  the  defendant  owned  or  operated 
any  telegraph  line,  or  that  such  line  extended  to  the  point  to 
which  the  plaintiff  desired  the  message  sent,  or  that  it  was 
engaged  in  the  business  of  sending  such  telegraphic  messages 
for  reward,  or  holds  itself  out  to  the  public  as  so  doing,  or  that 
it  has  any  facilities  for  sending  such  messages,  it  is  not  suffi- 
cient to  show  any  liability  on  the  part  of  the  defendant.^^  But 
the  statement  of  a  cause  of  action,  instituted  before  a  Justice  of 
the  peace  for  negligence  in  the  transmission  of  a  telegram,  was 
held  sufficient,  although  it  did  not  set  forth  the  language  of  the 
telegram,  nor  point  out  wherein  the  mistake  complained  of  con- 
sisted further  than  liy  stating  that  the  meaning  of  the  telegram 
had  been  negligently  altered. ^'^'^  Where  a  con. plaint  states  that 
a  copy  of  a  telegraph  message  is  attached,  which  copy  has  the 
message  written  upon  a  blank  printed  form  containing  certain 
conditions,  such  blank  with  the  message  and  conditions  thereon 
forms  a  part  of  the  complaint.^^^ 

§  1978a.  Allegation  of  speculative  damages.  Damages 
must  be  measured  by  the  loss  sustained,  and  where  that  loss  can 
not  be  ascertained,  damages  can  not  be  recovered.     Hence,  a 

07  See  Martin  v.  West.  Un.  Tel.  Co.,  1  Tex.  Civ.  App.  143;  Green- 
berg  V.  West.  Un.  Tel.  Co.,  89  Ga.  754;  West.  Un.  Tel.  Co.  v. 
WMIson,  93  Ala.  32;  30  Am.  St.  Rep.  23;  Ferguson  v.  Anglo-Am. 
Tel.  C^.,  151  Penn.  St.  211;  Reese  v.  West.  Un.  Tel.  Co.,  123  Ind. 
294;  West.  Un.  Tel.  Co.  v.  Esliridge,  7  Ind.  App.  208. 

08  Soutli  Fla.  Tel.  Co.  v.  Maloney,  34  Fla.  338. 

00  Id.;  and  see  Acheson  v.  Telograpli  Co.,  96  Cal.  641. 

100  Lee  v.  West.  Un.  Tel.  Co.,  51  Mo.  App.  375. 

101  Sherrill  v.  West.  Un.  Tel.  Co.,  109  N.  C.  527. 


977  COMMON  CAREIERS.  §  1978b 

complaint  in  an  action  against  a  telegraph  company  alleging 
that  through  the  gross  neglect  of  the  defendant  in  wrongfully 
addressing  a  telegram,  causing  a  delay  in  its  delivery,  the  plain- 
tiff was  prevented  from  receiving  an  appointment  as  deputy 
city  assessor,  at  a  specified  monthly  salary,  wliich  he  would  have 
received  if  the  message  had  been  promptly  delivered,  and  that 
he  had  sustained  damage  to  the  amount  of  five  months'  salary, 
for  which  judgment  is  prayed,  is  subject  to  a  general  demurrer 
upon  the  ground  that  the  damages  are  too  speculative  and  un- 
certain to  be  recovered.^*^^ 

§  1978b.  Who  may  sue.  The  law  as  regards  the  proper 
parties  to  sue,  as  between  consignor  and  consignee  on  a  con- 
tract of  carriage,  is  thus  summarized  by  ilr.  Angell:  First, 
where  the  entire  property  is  in  the  consignor,  he  is  the  proper 
party  to  sue;  second,  where  tlie  entire  property  is  in  the  con- 
signee, the  latter  sues;  third,  where  both  are  interested,  one 
as  general,  the  other  as  a  special  owner,  then  either  may  sue.^*^'"* 
A  suit  may  be  maintained  against  a  common  carrier  in  the 
name  of  any  person  having  either  a  general  or  special  property 
in  the  goods  involved,  and  an  action  properly  brought  by  such 
person,  will  be  a  bai-  to  any  subsequent  suit  against  the  carrier 
by  another  party  having  either  a  general  or  special  property 
in  the  same  goods  for  the  same  damages.^""*  The  ])arty  with 
whom  the  contract  of  shipment  is  made  may,  prima  facie, 
recover  for  its  breach,  irrespective  of  the  question  of  title  to 

i02Kenyon  v.  "West.  In.  Tel.  Co.,  100  Cal.  4.")4;  but  compare  West. 
Un.  Tel.  Co.  v.  Fenton,  '>2  Ind.  1;  see,  generally,  as  to  the  damages 
recoverable  for  failure  to  send  or  deliver  a  telegram  correctly  and 
promptly,  Brown  v.  West.  Un.  Tel.  Co.,  0  T'tah,  2TJ;  Mackay  v. 
West.  Un.  Tel.  Co.,  10  Nev.  222;  Russell  v.  Telegrapli  Co.,  ;{  Dak. 
Tr.  315;  West  v.  Telegraph  Co.,  39  Kan.  IK'.;  7  Am.  St.  Kep.  530; 
West.  Un.  Tel.  Co.  v.  Carter,  85  Tex.  .580;  .34  Am.  St.  Rep-  82<5. 
The  loss  of  a  bargain,  from  which  innflls  would  have  resulted,  ean 
not  be  visited  in  damages  upon  the  carrier,  unless  informed  of  the 
puniose  or  importance  of  the  message.  Cannon  v.  Telegraph  Co.. 
100  N.  C.  300;  G  Am.  St.  Kep.  500;  compnn'  R:i!dwin  v.  West.  Un. 
Tel.  Co.,  93  Ga.  092;  .34  Am.  St.  Rep.  191. 

10.3  Ang.  on  Carr.,  §  495;  and  s(K'  Wetzel  v.  Tower.  5  .Mont.  214: 
ONeill  V.  Railroad  Co.,  W  N.  Y.  1.38;  Ober  v.  Railroad  Co..  13  Mo. 
App.  81;  Dyer  v.  Railroad  Co..  51   Minn.  .345;  .38  Am.  St.  Rep.  .500. 

104  111.,  etc.,  R.  R.  Co.  v.  Miller,  32  111.  App.  2.59;  Denver,  etc.. 
R.  R.  Co.  v.  Frame.  0  Col.  382;  Woifc  v.  Hiiilmad  Co..  97  .Mo.  473; 
10  Am.  St.  Rep.  331. 

Vol.  I—  i2;> 


§  1078b  roKMS  OF  complaints.  978 

the  goods.^*'''  The  person  to  whom  a  tologram  is  directed  can 
maintain  an  action  for  whatever  legal  damage  results  to  him 
from  the  negligence  of  the  company  in  its  transmission  or 
delivery,  where  the  message  shows  that  he  is  interested  in  it, 
or  that  it  is  for  his  henefit,  or  that  damage  will  result  to  him 
from  such  negligence. ^^  The  i)arty  to  be  in  fact  accommo- 
dated, benefited,  or  served,  holds  the  beneficial  interest  in  the 
contract,  and  when  that  one  sustains  danuige  from  its  breach, 
a  right  of  action  arises  in  his  favor;^'''^  and  it  is  wholly  imma- 
terial by  whom  the  compensation  for  sending  the  message  was 
paid.^"^  But  when  the  plaintiff  was  no  party  to  the  contract 
under  wdiich  the  message  was  sent,  and  the  company  was  not 
informed,  either  by  the  terms  of  the  message,  or  otherwise,  that 
the  contract  w^as  for  his  benefit,  he  can  not  recover. ^'^^ 

105  Davis  V.  Jacksonville  S.  E.  I.,ine,  126  Mo.  G9;  also,  to  same 
effect,  Oantwell  v.  Pac.  Ex.  Co.,  58  Ark.  487. 

106  International,  etc.,  Tel.  Co.  v.  Saunders.  32  Fla.  434;  West. 
TJn.  Tel.  Co.  v.  Hope,  11  111.  App.  289;  De  Rutte  v.  Albany,  etc., 
Tel.  Co.,  1  Daly,  547. 

107  West.  Un.  Tel.  Co.  v.  Adams,  75  Tex.  531;  10  Am.  St.  Rep. 
920;  Sherrill  v.  West.  Un.  Tel.  Co.,  109  N.  C.  527;  Baldwin  v.  West. 
Un.  Tel.  Co.,  93  Ga.  692;  44  Am.  St.  Rep.  194. 

108  West.  Un.  Tel.  Co.  v.  Beringer,  84  Tex.  38. 

109  West.  Un.  Tel.  Co.  v.  Wood,  57  Fed.  Rep.  471;  West.  Un.  Tel. 
Co.  V.  Fore  (Tex.  App.),  26  S.  W.  Rep.  783. 


CHAPTER  III. 

AGAINST    AGEXTS,    EMPLOYEES,    AND    OTHERS    FOR    NEGLrGENCE. 

§   1979.  Against  agent  for  not  using  diligence  to  sell'  goods. 
Form  A'o.  49^. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18 . .,  at 

,  the  defendant  agreed  with  the  plaintiR,  as  his 

agent,  and  for  compensation  to  be  paid  by  plaintiff,  to  sell  for 
him  certain  goods,  to-wit    [describe   them],   of  the   value   of 

dollars;  and  thereupon  received  the  same  from 

him  for  that  purpose. 

II.  That  the  defendant  did  not  use  due  diligence  to  sell  the 
same,  but  unreasonably  delayed  so  to  do;  and  by  reason  thereof, 
the  same  were  aftenvards  sold  by  the  defendant  for  the  plaintiff 

and  produced   dollars  less  than  the  same  would 

have  produced  had  the  defendant  used  due  diligence  in  selling 

the  same;  and  whereby  plaintiff'  incurred dollars 

expenses  in  warehousing  same,  to  his  damage  in 

dollars. 

[Demand  of  Judgment.] 
§  1980.  Ferryman.  It  is  the  duty  of  the  ferryman  to  see 
that  the  teams  are  safely  driven  on  board  the  boat,  and  if  he 
tbinks  proper,  he  may  drive  himself,  or  unharness  the  team,  or 
unload  the  wagon  to  get  them  safely  on  I)oar(l.'  lUit  if  tlie 
ferryman  permits  the  party  to  drive  himself,  he  constitutes  iiiin 
quoad  hoc  his  agent.^ 

§  1981.  Negligence  of  sheriff.  The  mere  omission  of  a 
deputy  to  inform  the  slioritF  of  having  process  in  hand  is  not 
such  negligence  as  to  cliargc  the  sheriff  in  case  a  writ  last  in 
hand  was  executed  first."* 

1  May  V.  Hanson,  !'»  C.il.  P.OO;  m  Am.  IX'f.  l.*?"». 

2  Id.  A  ferryman  wJio  n'<-clv»'s  liorscs  for  tninsportiition.  In 
charRe  of  a  driver,  can  n<>1  1k>  licid  lijiblc  for  :in  Jiccidi'iit  )<>  fliem. 
in  the  al)S('nff'  of  ncRliKencc  on  liis  icirt.  Yerkcs  v.  Sahlu,  1)7 
Ind.  141;  49  Am.  Kop.  4:i4. 

3  Whitney  v.   ButterfieUl.   1."'.  ("al.   '-V.'.rr.  7.".   .\in.   Dec.  5S4. 
4Ck)it  v.  IIunil)ert,  r,  Cal.  2W;  (W  Am.  Dec.  128. 


§{^  11)8'.'-1!I85  FORMS    01'    COMPLAINTS.  D80 

§  1982.  Pledgee  as  agent.  A  party  by  ]>lodging  negotiable 
soeuritios  transl'onihle  by  delivery  loses  all  rigbt  to  tlie  securi- 
ties wlien  transrerred  by  the  i)ledgee  in  good  faith  to  a  third 
l>;u-ty.  The  i)ledgee  in  such  ii  ease  sliould  Ije  treated  in  the 
transaction  as  the  agent  of  the  owner,  and  the  owner  should 
be  bound  by  his  acts  in  the  premises.'^ 

§  1983.  Powers  of  agent.  In  an  action  by  a  principal 
against  his  agent  charging  him  with  an  abuse  oi'  his  powers,  it 
is  necessary  to  allege  tliat  tlio  defendant  acted  as  agent." 

§  1984.  Unauthorized  act  of  agent.  Tlie  ratification  by 
a  principal  of  an  unautliorized  act  of  an  agent  has  a  retroactive 
eliicacy,  and  being  equivalent  to  an  original  authority,  an  alle- 
gation of  due  authority  is  sustained  by  proof  of  such  ratifica- 
tion. If  an  agent  acting  in  good  faith  disobey  the  instructions 
of  his  principal  and  promptly  inform  his  principal  of  the  fact, 
the  principal  should  at  the  earliest  opportunity  repudiate  the 
act  if  he  disapprove.  Silence  is  a  ratification.'^  A  principal 
is  liable  for  the  actual  damage  caused  by  the  act  of  his  agent 
done  in  the  usual  course  of  his  employment,  but  is  not  respon- 
sible for  wanton  or  malicious  damage  done  by  the  agent  without 
consent,  approval,  or  subsequent  ratification  by  the  principal.^ 

§  1985.  Against  agent  for  carelessly  selling  to   an  insolvent. 

Form  No.   49S. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day   of    ,   18..,  at 

,  the  defendant  undertook  with  the  plaintiff,  as 

his  agent,  and  for  the  com]:»ensation  to  be  paid  by  him,  to  sell 
for  him  goods  of  the  plaintiff,  to-wit  [designate  goods],  of  the 

value  of dollars,  and  thereupon  received  the  same 

from  him  for  that  purpose. 

II.  That  the  defendant  did  not  use  due  diligence  to  sell,  or 

in  selling  the  same,  but  negligently  sold  the  said 

for  the  plaintiff  to  a  person  in  embarrassed  circumstances,  then 
well  knowing  said  person's  financial  embarrassments,  without 

r.  Aetna  Ins.  Co.  v.  Sabine,  6  McLean,  393. 

6  Hoyt  v.  Thompson's  Exrs.,  19  N.  Y.  218. 

7  Pray  v.  Gunn,  .^3  (ia.  144;  Heyn  v.  O'Hageu,  6a  Mich.  150. 

8  Mendelsohn   v.    Analieim    Lighter  Co.,  40   Cal.   657;   George   v. 
Gobey,  128  Mass.  289;  35  Am.  Rep.  376. 


981  AGAIXST   AGENTS,    ETC.,    FOR   K"EGLIGE]S"CE.       §§  1986,  1987 

receiving  the  price  therefor,  or  taking  security  for  the  payment 
thereof;  whereby  the  plaintiff  has  hitherto  lost,  and  is  likely 

wholly  to  lose  the  price,  to  plaintiff's  damage   

dollars. 

[Demand  of  Judgment.] 

§  1986.  Against  agent  for  selling  for  a  worthless  bill. 
Form  No.  499. 
[Title.] 
The  ])laintiff  complains,  and  alleges: 

I.  That   on  the    day  of    ,    18 . . ,  at 

,  the  defendant  undertook  with  the  plaintiff,  as 

his  agent,  and  for  a  compensation  to  be  paid  by  him,  to  sell 
for  him  [state  what],  for  cash  or  an  approved  bill  or  note,  at 
thirty  days  or  less,  and  not  otherwise  [or  state  the  fact]. 

II.  That  the  defendant  did  not  use  due  dihgence  in  selling 
the  same,  but  negligently  and  without  exercising  ordinary  busi- 
ness care,  sold  the  same  for  a  bad  and  insufficient  bill  of  ex- 
change, for dollars,  having months  to 

run,  and  which  is  worthless  and  of  no  value  to  the  plaintiff; 
and  although  the  same  became  payable  before  this  action,  it 

is  .=itill  unpaid,  to  the  damage  of  the  plaintiff    

dollars. 

[Demand  of  Judgment.] 

§  1087.  Against  an  auctioneer,  for  selling  below  the  owner's 
limit. 

Form   A^o.   500. 

[Title.] 
The  plaiiitiil'  complains,  and  alleges: 

I.  That  on   tbe    day  of    18...  at 

the  defendant  was  engaged  in  tlio  business  of 

an  auctioneer,  and  in  consideration  tbat  tbe  plaint  ill'  would 
deliver  to  bim  [describe  the  goods],  to  ])e  sold  by  bini  for  the 
plaintiff  for  a  compensation,  undertook,  as  such  auc-tion«H^r,  at 
the  time  and  i)laco  aforesaid,  to  sell  the  same,  nt  and   for  no 

less  money  tlian  tlx-  sum  of dollars,  and  not  to 

sell  them  otherwise- 

II.  Tbat  the  plaintjff  delivered  sai<l  goods  to  tlie  defendant 
for  that  purpose. 

III.  Tbat  the  defendant,  witliout  tlie  knowledge  or  consent 
of  the  plaintifl",  sold  said  goods  for  less  than  the  sum  to  which 


§§  1088,  l'-'S9  Foinis  of  complaints.  982 

he  was  so  limited  as  aforesaid,  to-wit,  for dollars, 

to  his  damage  dollars. 

[Demand  of  Judgment.] 

§  1988.  Against  an  auctioneer,  for  selling  on  credit  against 
orders. 

Form   No.   301. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That   on   the    day   of    ,   18..,  at 

,  the  defendant  was  engaged  in  the  business  of 

an  auctioneer,  and  in  consideration  that  the  plaintiff  would 
deliver  to  him  [describe  goods],  to  be  sold  by  him  for  the 
plaintiff  for  a  compensation,  undertook  as  such,  at  the  time 
aud  place  aforesaid,  to  sell  the  same  for  cash,  and  not  otherwise. 

II.  That  the  plaintiff  delivered  said  goods  to  the  defendant 
for  that  purpose. 

III.  That  the  defendant  afterwards  sold  said  goods  on  credit 
without  the  plaintiff's  consent,  and  that  the  parties  to  whom 
such  sale  was  made  are  and  then  were  wholly  insolvent,  and  the 

debt  is  of  no  value;  to  the  plaintiff's  damage    

dollars. 

[Demand  of  Judgment.] 

§  1989.  Against  auctioneer  or  agent,  for  not  accounting. 

Form   No.   502. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  or  about  the day  of ,  18 .  ., 

at    ,  the    plaintiff    shipped    from    the    port    of 

,  consigned  to  the  defendant,  then  his  agent,  at 

,  to  sell  for  cash    [describe  the  goods],  of  the 

A'alue  of  dollars,  and  gave  notice  of  said  con- 
signment to  the  defendant,  which  agency,  for  a  valuable  con- 
sideration, he  undertook  and  entered  upon. 

II.  That  he  received  said  goods,  and  thereafter  sold  the  same, 

or  some  part  thereof,  on  account  of  the  plaintiff,  for 

dollars. 

III.  That  a  sufficient  and  reasonable  time  has  elapsed  since 
.said  goods  were  received  and  sold  by  defendant,  yet  he  has 
neglected  and  refused,  and  still  neglects  and  refuses,  to  render 
to  the  plaintiff  a  just  and  true  account  of  such  sale,  and  of  the 


983  AGAINST   AGENTS,    ETC.,    FOR   NEGLIGENCE.       §§  1990,  1991 

proceeds  thereof,  and  has  also  neglected  and  refused  to  pay 

over  the  proceeds  to  the  plaintiff,  to  his  damage 

dollars. 

[Demand  of  Judgment.] 

§  1990.  Agent.  In  an  action  against  an  agent  for  not 
accounting,  a  request  to  account  and  pay  over  must  be  alleged 
in  the  complaint  and  proved  at  the  trial.'-^  Uut  the  principal 
must  make  demand  within  a  reasonable  time  if  he  has  notice 
of  the  payment  of  money  to  his  agent  or  attorney,  and  if  he 
neglects  to  do  so,  the  statute  of  limitations  will  run.^^ 

§   1991.  Against  forwarding  agent,  for  not  forwarding  goods 
as  agreed. 

Form  No.  503. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  hereinafter  mentioned,  the  defendant 

was  a  forwarding  agent,  and  keeper  of  a  warehouse,  at , 

for  the  reception  of  goods  intended  to  be  forwarded  by  him, 
for  hire,  from to   ,  .   ,.^ 

II.  That  on  the day  of ,  the  plaintiff 

delivered  to  the  defendant  certain  merchandise,  to-wit  i  desig- 
nate the  same],  the  property  of  thc>  plaintiff,  of  the  value  of 
dollars,  wliich  the  defendant  received  and  under- 
took for  hire,  to  forward  in  a  reasonable  time  from •  •  • 

to ,  by  vessel,  and  meanwliilc  to  store  and  safely 

keep  the  same. 

Ill    That  after  defendant  received  said  goods,  sucli  a  vessel 
did  within  a  reasonable  time  tben  following,  to-wit,  on  -r  about 

the dav  of ,  18.  ..  sail  from  said 

to  ..;.,  and  tiir  defendant  might  and  ought   lo  have 

delivered' the  said  goods  to  the  master  of  su<  b  vessel  for  the 
purpose  aforesaid. 

aBuslmell  V.  McCauley.  7  (^.1.  l-'l.  NV-ssiiy  of  Mlle;:!,.^'  :«  <!•- 
>..nd.  sre  Cla.vpcx.l  v.  (Jisl..  los  In.l.  fJl.  I'-n.  :<  .l..n.an.l  is  no 
..ulre.l  where  tl>e  aKe.uy  is  .lenied.  or  a  .lai-.  is  s.t  "P  ;>^--'  "  ^ 


ina 

req 

the 

the 

show 

V.  Buttei-flehl.  JI2  Ind.  1. 

10  Whitehead   v.  Wolls.  L'H  Ark.  W 


,       n-,t...l     or'lh.'  •iireiifs   ivspousihility    Is  disimt.-.l    In 
0  amount  colleeli'M,  01    in«    .i^<  ">  •     •      1  .„     ,  ,, 

e  answer.     Wil.y  v.   I.op.n.  Ji..  N.  (  .  ■.•-^.     •^   ' 

>ows  a  wrongful  .onversion  <.f  1h.  n.oney  by  th.  a......      luuil 


S!<  l'.H»"2,   I'.tUo  I'OKMS    OF    CO.Ml'LAliNTS.  984 

CO 

IV.  That  the  defendant,  not  regarduig  his  duty  in  that  re- 
spect, did  not  do  so,  or  otherwise  forward  said  goods  within  a 
reasonul)lo  liiue,  but  kept  and  detained  the  same  in  his  said 
warehouse,  for  a  long  and  unreasonable  time,  to-wit,  four 
months,  whereby  the  said  goods  perislied,  to  the  damage  of  the 

plaintiff dollars. 

[Demand  oy  Judgment,] 

§  1992.  Forwarders  are  not  insurers.  Forwarders  axe  not 
insurers,  but  they  are  responsible  for  all  injuries  to  property 
while  in  their  charge,  resulting  from  negligence  or  misfeasance 
of  themselves  their  agents,  or  employees.^^ 

S  1993.  Against  an  attorney  for  negligence  in  the  prosecu- 
tion of  a  suit. 

Form  No.  504. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is,  and  at  the  times  hereinafter  men- 
tioned was,  an  attorney  of  the  Supreme  Court  of  this  state; 

that  the  plaintiff,  on  or  about  the  month  of ?  18.  ., 

retained  and  employed  him  as  such  attorney,  to  prosecute  and 
conduct  an  action    in    the    Superior    Court  of  the  county  of 

,  state  aforesaid,  on  behalf  of  this  plaintiff,  against 

one  A.  B.,  for  the  recovery  of dollars,  due  from 

him  to  this  plaintiff,  and  the  defendant  undertook  to  prosecute 
said  action  in  a  proper,  skillful,  and  diligent  manner,  as  the 
attorney  of  the  plaintiff. 

II.  That  the  defendant  might,  in  case  he  had  prosecuted  said 
action  with  due  diligence  and  skill,  have  obtained  final  judg- 
ment therein  for  this  plaintiff  before  the day  of , 

•18..,  but  he  so  negligently  and  unskillfully  conducted  said 
action,  that  by  his  negligence,  delay,  and  want  of  skill,  he  did 

not  obtain  judgment  until  the day  of 18 .  . , 

and  tbat  mea.nwhile  said  A.  B.  had  become  insolvent;  whereby 
the  plaintiff  was  hindered  and  dei^rivefl  of  tbc  means  of  re- 
covering said  sum  of  money,  and  that  the  same  has  not,  nor 
has  any  part  thereof,  been  recovered  or  made  by  plaintiff,  to 
his  damage dollars. 

[Demand  or  Judgment.] 

11  Hooper  V.  Wells,  Fargo  &  Co.,  27  C:il.  11;  8.^  Am.  Dec.  211. 


I 


985  AGAINST   AGENTS,    ETC.,    FOR   XEGLI6EXCE.        §§  1994-1996 

§  1994.  Attorneys,  liabilities  of.  An  attorney  is  liable 
to  his  client  for  want  of  ordinary  care,  skill,  diligence,  and 
integrity. ^2  q^^^  where  in  a  suit  a  question  has  been  made  and 
decided  by  the  supreme  court,  counsel  can  not  be  charged  with 
negligence  in  acting  upon  that  decision  as  the  law  of  the  case.^^ 
Nor  where  he  accepts  as  correct  a  decision  of  the  Supreme 
Court  of  his  own  state  in  advance  of  any  decision  by  the  United 
States  Supreme  Court  on  the  same  subject.^"* 

§  1995.  General  averment  that  he  was  retained.  In 
declaring  against  an  attorney  for  negligence,  it  is  only  neces- 
sary to  aver  generally  that  he  was  retained.  But  if  it  be  alleged 
that  he  was  retained  in  consideration  of  certain  reasonable  fees 
and  rewards  to  be  paid  him,  and  no  future  time  is  agreed  upon 
for  the  payment  of  such  fee,  the  declaration  must  aver  payment, 
and  the  omission  of  this  is  error. ^^ 

§   1996.  For  negligent  defense. 

Form  No.  505. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  the  defendant  is,  and  at  the  times  hereinafter  stated 
was,  an  attorney-at-law,  and  that  the  plaintiff,  in  the  month  of 

,  18 ...  at ,  retained  him  as  such,  to 

defend  on  behalf  of  this  plaintiff  an  action  brought  against  him 

by  A.  B.,  then  pending  in  tlie court  of  said  state, 

for  the  recovery  of   dollars,  and  tlie  defendant 

undertook  to  defend  said  action  in  a  proper,  skillful,  and  dili- 
gent manner,  as  the  attorney  of  the  plaintiff- 

II.  That  such  proceedings  were  had  in  such  action  that  on 

or  about  the day  of IS..,  it  became  tlie 

duty  of  the  defendant,  as  tlie  attorney  of  this  i)laintiff,  to  inter- 
pose an  answer  on  his  behalf  to  the  complaint  therein,  but  he 
wholly  neglected  so  to  do,  and  by  reason  thereof,  and  through 
his  neglect,  .indgment  by  default  was  obtained  against  tlu^  plain- 
is  fjamlK-rt  V.  Hart.  44  Cal.  ."»4l!:  see,  also,  ns  to  ne;rlifrenci'.  l>r:iis 

V.  HoKan,  ."O  id.  121:  Citizens',  etc..  Ass'n  v.  Friedl.v.  ILV?  Ind.  1  i:'.; 
18  Am.  St.  Hei).  .*?20;  Isliani  v.  Pariver,  3  Wash.  SI.  ".'."..  As  to  tin- 
law  of  Illinois  reKiilatiuL'  tin-  liabilities  of  jittonieys,  see  I'nter- 
haufrh's  ri.  &  T'r.  ."►17. 

13  Hastings   v.   Ilallefk.    i:;   f"al.   2>\:',. 

14  Marsli   V.   Wliifinon-.  L'l    Wall.   ITS. 
iBCavilland  v.   Vale.  3  Cal.  108;  r>S  Am.  Dee.  388. 

Vol.  1—124 


§§  191)7,   iS»l>8  FOUMS    OF   COMPLAINTS.  986 

tiff  in  said  action,  and  by  reason  thereof  this  plaintiff  was  com- 
pelled to  pay  to  the  said  A.  B dollars,  the  sum 

so  recovered  by  him,  and  was  put  to  costs  and  charges  in  his 
endeavor  to   defend   such  "action,   amounting   to   the   sum   of 

dollars,  and  lost  the  means  of  recovering  the 

same  back  from  said  A.  13.,  to  the  damage  of  the  plaintiff  in 

the  sum  of dollars. 

[Demand  of  Judgment.] 

§  1997.  Existence  of  facts.  To  charge  an  attorney  with 
negligence,  in  failing  to  set  up  a  defense  based  upon  certain 
facts  communicated  to  him  by  his  client,  he  must  show  by 
evidence  the  existence  of  such  facts,  and  that  they  were  sus- 
ceptible of  proof  at  the  trial,  by  the  exercise  of  proper  diligence 
on  the  part  of  the  attorney.^^ 

§  1998.  For  negligence  in  examining-  title. 

Form  No.  506. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  a  time  hereinafter  mentioned,  the  plaintiff  made 
a  contract  with  one  A.  B.  for  the  purchase  from  him  of  certain 

real  property  [describe  the  premises],  for  the  sum  of 

dollars,  which  property  said  A.  B.  assumed  to  have  power  to 
convey  in  fee,  and  clear  of  all  incumbrances. 

II.  That  the  defendant  was  an  attorney,  and  the  plaintiff  at 

,  in  the  month  of ,  18 . . ,  employed 

him  as  such  to  examine  the  title  of  A.  B.  to  said  property,  and 
to  ascertain  if  the  title  was  good,  and  if  any  incumbrances  ex- 
isted thereon,  and  to  cause  and  procure  an  estate  therein,  in 
fee  simple,  and  clear  of  all  incumbrances,  to  be  conveyed  to 
the  plaintiff,  which  the  defendant,  for  compensation,  agreed 
to  do. 

III.  That  defendant  negligently  and  unskillfully  conducted 
such  examination,  and  did  not  use  endeavors  to  cause  or  pro- 
cure a  good  and  sufficient  title,  in  fee,  clear  of  incumbrances 
to  be  conveyed  to  the  plaintiff;  but  A\Tongfully  advised  and 

induced  the  plaintiff  to  pay  said  A.  B.  the  sum  of 

dollars,  being  said  purchase-money  of  the  premises,  when  in 
fact  said  A.  B.  had  no  title  thereto  [or  when  said  property  was 

18  Hasting  v.  Halleck,  13  Cal.  203;  and  see  Isham  v.  Parker,  8 
Wash.  St.  75.5. 


987  AGAI2sST   AGENTS,    ETC.,    FOE    NEGLIGENCE.       §§  1999,  3000 

subject  to  incumbrances,  specifying  them  and  amount,  and  the 
plaintiff,  in  order  to  release  the  premises  from  said  incum- 
brances, was  obliged  to  pay  the  holders  thereof  the  sum  of 

dollars],  to  plaintiff's  damage dollars. 

[Demand  of  Judgment.] 

§  1999.  Examining  title.  In  an  action  against  an  attor- 
ney, for  negligence  in  examining  title,  it  is  not  siifficient  to 
allege  that  the  property  was  incumbered.  The  declaration 
must  show  how  the  property  was  incumbered. ^^  The  law  im- 
plies that  a  person  engaged  in  searching  records  and  examining 
titles  possesses  the  knowledge  and  skill  requisite  for  the  busi- 
ness, and  that  he  will  use  ordinary  care;  and  for  a  failure  in 
either  of  these  respects  he  is  liable  to  the  party  injured.^* 

§  2000.    Against   a   contractor,    for   leaving  the   street   in   an 
insecure  state,  whereby  plaintiff's  horse  was  injured. 
Form  No.  507. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  times  hereinafter  mentioned,  the  defendant 

had  contracted  with   ,  to  lay  down  pipes  in  and 

under  the  highway  known  as street,  in , 

for  the  purpose  of  supplying  the  said with  gas, 

and  to  make  the  proper  trenches  for  the  purpose;  and  when 
such  pipes  were  laid  down,  to  fill  up  properly  the  said  trenches, 
and  to  put  and  leave  the  said  highway  clear  and  in  a  reasonably 
secure  condition. 

II.  That  the  defendant  and  his  servants,  on  tlie 

day  of 18.  .,  took  up  i)art  of  said  highway,  and 

made  trenches  and  holes  therein,  and  laid  down  said  pipes,  and 
displaced  the  earth  and  material  of  said  highway,  and  carelessly 
and  negligently  left  the  said  higliway  in  a  dang.'rous  and  im- 
proper state,  in  consequence  whereof  a  liorse  nf  the  phiinlilT, 

of  the  value  of dollars,  which  was  llicii  an<l  there 

lawfully  driving  along  the  said  higliway,  fell  into  and  sunk 
tlierein,  and  was  wounded  and  lamed,  and  rendered  of  no  value, 
to  plaintiff's  damage dollars. 

[DfMANT)   of   .TrDCMKNT.] 

iTElfler  V.  Rop.nrdiis,  Hill  tV  T).  Supp.  IK'.. 

i«Chaso  V.  Henney.  70  III.  2<IS;  Snvinps  Hnnk  v.  Wiirtl,  UNI  V.  S. 
19.';  Dundee  Moi-t..  etc..  Co.  v.   Huu'lies,   lo  S;nv.v<r.   1  U. 


§§  •.*00l--v>0U3  i-oKMs  or  coMi'LAi^'ivs.  988 

§  2001.  Acceptance.  After  acceptance  of  the  work  or  con- 
struction by  llio  person  for  whom  it  was  built,  tlie  owner  be- 
comes liable  for  subsequent  injuries,  and  the  liability  of  the 
contractor  ceases.^* 

§  2002.  Against  municipal  corporation  for  damage  done  by 
mob  or  riot. 

Fori)i  No.  308. 
[Title.] 
The  plaintiif  complains,  and  alleges: 

I.  That  at  and  before  the  times  hereinafter  mentioned,  the 
plaintiff  M-as  the  occupant  of  [state  the  building],  and  therein 
he  conducted  a  business  as  [state  business]. 

II.  That  on  the day  of .  . ,  18 .  . ,  a  mob 

of  disorderly  and  riotous  persons  collected  together  in  said  city 
and  created  a  riot. 

III.  That  on  said  day  the  rioters  broke  into  the  plaintiff's 
said  premises,  and  carried  away  therefrom  and  destroyed  his 
goods  and  merchandise. 

IV.  That  the  said  defendants,  though  having  due  notice  of 
the  said  riot  immediately  after  its  breaking  out,  did  not  them- 
selves protect  the  plaintiff's  property,  hut  neglected  so  to  do. 

V.  That  the  value  of  his  said  goods  and  chattels  so  destroyed 

or  injured  by  the  said  rioters  was dollars,  and  he 

also  sustained  great  damage  by  the  breaking  into  his  premises, 
and  injury  to  the  building,  and  the  breaking  up  of  his  business 

for weeks  thereafter,  by  reason  of  the  destruction 

of  his  stock  of  goods,  to-wit,  in  the  sum  of dollars. 

[Demand  of  Judgment.] 

§  2003.  Action  against  municipality  for  damage  done  by  mob. 

At  common  law  an  action  will  not  lie  in  behalf  of  an  individual 
who  has  sustained  special  damage  from  the  neglect  of  a  public 
corporation  to  perform  a  public  duty.^°  The  liability  of  a 
municipal  corporation  for  damages  done  by  a  mob  is  therefore 
solely  the  result  of  statutes.^^  Under  such  statutes,  in  an  action 
against  a  city  or  county  for  damage  to  property  caused  by  a 
mob  or  riot,  an  averment  of  the  facts  and  the  damage  sustained 

lOBoswell  v.  Laird,  8  Cal.  409;  68  Am.  Dec.  345. 

20  Pray  V.  Mayor  of  .Jersey  City,  ,32  N.  .T.  L. 

21  Clear  Lake  W,  Co.  v.  Lakp  County,  4.5  Cal.  90.  For  the  pro- 
visions of  the  California  statuto  in  reference  to  this  subject,  see 
Pol.   Code,   §§  4452-4457. 


989  AGAINST   AGEXTS,    ETC.,    FOR   NEGLIGENCE.       §§  2004,  2005 

by  the  plaintiff  will  be  sufficient  to  sustain  the  action,  and  it 
is  not  necessary  for  the  plaintiff  to  negative  negligence  or  care- 
lessness on  his  own  part.^  But  if  the  jjlaintiff  has  knowledge 
of  the  impending  danger,  and  neglects  to  inform  the  authori- 
ties, it  may  be  a  valid  defense.^  lS''or  is  it  necessary  to  present 
a  claim  for  damages  to  the  board  of  supervisors  of  the  county 
before  an  action  can  be  brought  thereon.^^  If  the  plaintiff 
recover  judgment  in  such  action,  the  judgment  must  he  ordered 
paid  by  the  supervisors,  unless  tliey  determine  to  appeal.  If 
the  county  treasurer  refuses  to  pay  such  claim,  mandamus  is 
the  proper  remedy  to  compel  him  to  do  so.^^ 

§  2004.  Conflagration.  The  constitutional  provision  that  re- 
quires payment  for  private  property  taken  for  public  use  does 
not  apply  in  the  case  of  destroying  a  house  to  stop  a  conflagra- 
tion. This  right  belongs  to  the  state  in  virtue  of  her  right  of 
eminent  domain.^  A  city  is  not  liable  for  the  destruction  of 
a  building  to  prevent  the  spread  of  a  fire,  whether  by  private 
individuals  or  by  order  of  the  city  authorities  assuming  to  act 
officially.27 

§  2005.  Against  a  railroad  for  killing  cattle. 
Form  No.   509. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  hereinafter  mentioned,  the  defendant  waa 
a  corporation  duly  organized  under  the  laws  of  this  state,  and 

was  owner  of  a  certain  railroad  known  as  the    

Railroad,  together  with  the  track,  cars,  locomotives,  and  other 
appurtenances  thereto  belonging. 

22  Wolf  v.  The  Supervisors  of  Kichnioud  Co.,  1!>  How.  I'r.  :^T0; 
8.  C,  11  Abb.  Pr.  270. 

MWInj?  Chung  v.  Los  Anpolos,  47  Cal.  r).31.  As  to  liability  of 
city  and  county,  see  Dnrlinfrton  v.  Mayor  of  N.  Y.,  28  How.  I'r. 
352;  MOo<ly  v.  SuiKTvisors  of  Niagara  Co.,  4(5  Barb.  (mJ);  Schiollcln 
V.  Stiporvisors  of  Kings  Co.,  4.3  id.  400;  Blo<lgott,  v.  City  of  Syracuse. 
'60  id.  r»2«;. 

24  Clear  ].ak<"  W.  Co.  v.  Lake  Co..  4.^.  Cal.  IM);  Hank  of  California 
V.  Shaber,  r>.%  id.  .322;  and  see  Lclin  v.  S.-in  Francl.sco.  r.C  Id.  7(>; 
Spanglcr  v.  San  Franoisro,  84  id.  12;  IS  Am.  St.  Hop.  158. 

2ft  Bank  of  California,  v.  ShalnT,  55  Cal.  ;{22. 

26SunK(0  V.  (;«'ar>'.  .3  Cal.  «1»;  58  Am.  Dec.  .38.5. 

27McI>onald  v.  City  of  Bed  Wing.  13  Minn.  .38;  and  boo  /r.r  Parle 
Fisko.  72  Cal.  125;  I'lrsf  .Nat.  Baidi  v.  Sarlls.  12«.)  Tnd.  201;  28  Am. 
St  Rep.  185. 


§§  200G,  :2007  forms  of  com i'Laixts.  990 

II.  That  ou  the  day  of  ,  18 .  . ,  the 

plaiutilf  was  the  owner  and  possessed  of  certain  cattle,  to-wit, 
five  cows  and  two  oxen  [or  any  other  stock,  as  the  case  may 

be],  of  the  vahie  of dollars,  and  which  cows  and 

oxen  casually,  and  without  the  fault  of  said  plaintiff,  strayed 
in  and  upon  the  track  and  ground  occupied  by  the  railroad  of 
the  said  defendant  at 

III.  That  the  said  defendants  by  its  agents  and  servants,  not 
regarding  its  duty  in  that  respect,  so  carelessly  and  negligently 
ran  and  managed  said  locomotives  and  cars,  that  the  same  ran 
against  and  over  the  said  cows  and  oxen  of  the  said  plaintiff, 
and  killed  and  destroyed  the  same,  to  the  plaintiff's  damage 
dollars. 

[Demand  of  Judgment.] 

§  2006.  Allegation  of  place.  A  complaint  in  an  action  against 
a  railroad  company,  to  recover  the  value  of  animals  killed  on 
its  track,  w^hich  alleges  that  at  the  place  and  time  when  said 
animals  were  killed  by  the  defendant's  locomotive  and  cars  the 
same  was  not  securely  fenced  as  required  by  law,  sufficiently 
alleges  that  the  railroad  was  not  securely  fenced  at  the  place 
the  cattle  entered  upon  the  track.^  A  complaint  against  a 
railroad  company,  for  stock  killed  by  the  machinery  of  the 
company,  is  bad,  even  after  verdict,  if  it  fail  to  aver  negligence, 
or  that  the  road  was  not  fenced.^ 

§  2007.  Fence  on  line  of  road.  The  provision  of  the  law 
requiring  railroad  companies  to  fence  along  the  line  of  their 
road  may  be  waived  by  adjoining  owners.^^  A  railroad  is  not 
bound  to  maintain  a  fence  on  the  line  of  its  road  against  cattle 
imlawfully  in  a  pasture  adjoining. ^^  A  railroad  company  was 
required  by  statute  to  maintain  "  fences  suitable  for  the  security 
of  the  landowners,"  on  both  sides  of  its  road.  Plaintiff's  sheep 
having  been  suffered  to  go  unlawfully  on  land  adjoining  said 
road,  got  through  a  defective  part  of  the  fence  upon  the  road, 
and  were  killed  by  the  train.  As  it  did  not  appear  that  the 
train  was  negligently  managed,  it  was  held  that  the  company 

28  Indianapolis,  etc.,  R.  R.  Co.  v.  Adliins,  28  Ind.  340. 

29  Indianapolis,  etc.,  R.  R.  Co.  v.  Bnicey,  21  Ind.  215. 

30  Enright  v.  S.  F.  &  S.  J.  R.  R.  Co.,  38  Cal.  230. 
81  Mayberry  v.  Concord  Railway,  47  N.  H.  391. 


991   AGAINST   AGENTS,    ETC.,    FOR   NEGLIGENCE.       §§  2008,  2009 

was  not  liable.^^  Otherwise,  if  the  company  was  grossly  negli- 
gent.^^ In  California,  under  section  485  of  the  Civil  Code,  a 
railroad  corporation  is  liable  for  injuries  inflicted  by  it  on  a 
horse  and  the  person  riding  it,  when  such  injuries  are  occa- 
sioned, without  negligence  on  the  part  of  the  rider,  on  a  portion 
of  the  road  which  was  not  inclosed  as  required  by  such  section. 
Whether  the  rider  was  guilty  of  contributory  negligence  is  a 
question  for  the  jury.^"*  If  an  insufficient  barway  is  placed  by 
a  railroad  company  in  a  fence  on  the  line  of  its  road,  at  the 
request  of  and  for  the  use  of  the  owner  of  adjoining  land,  and 
he  uses  the  same  and  does  not  complain  of  its  insufficiency,  or 
notify  the  company  to  alter  it,  the  company  is  not  liable  for 
damages  for  injuries  to  his  cattle,  happening  in  consequence 
of  the  barway  being  too  low  to  turn  cattle.^^ 

§  2008.  Negligence  defined.  Negligence  is  the  omission  to 
do  something  which  a  reasonable  man,  guided  by  those  con- 
siderations which  ordinarily  regulate  the  conduct  of  human 
affairs,  would  do,  or  doing  something  which  a  prudent  and 
reasonable  man  would  not  do.  It  is  not  absolute  or  intrinsic, 
but  always  relative  to  some  circumstance  of  time,  place,  or  per- 
son.^^  Negligence  is  a  violation  of  the  obligation  which  en- 
joins care  and  caution  in  what  to  do;  but  this  duty  is  relative, 
and  where  it  has  no  existence  between  particular  parties  there 
can  be  no  such  thing  as  negligence  in  the  legal  sense  of  the 
term.^'^ 

§  2009.  Negligence,  proximate  and  remote.  \\  lien  tlie  negli- 
gence of  the  defendant  is  proximate,  and  that  of  the  plaintiff 

32Eames  v.  Salem  &  Lowell  II.  R.  Co..  98  Mass.  .^>fiO;  9(5  Am.  Deo. 
676;  see  Toledo,  Waba.sh  &  W.  K.  U.  To.  v.  Fnrcusson,  41.'  111.  449; 
Price  V.  N.  J.  U.  R.  Co.,  .32  N.  .1.  I-.  V.K 

33  Illinois  Cent.  R.  R.  Co.  v.  Wren,  43  111.  77. 

34iiyiies  V.   S.   F.,  etc.,  R.   R.  Co.,  (>.')  Ciil.  .'nc. 

35  EnrlKht  v.  S.  F.  &  S.  J.  R.  R.  Co..  .T'.  Cal.  2:{0.  Fndcr  sootlon 
485  of  the  California  Civil  Code,  conslnHMl  in  coniitM'tion  with 
section  1248  of  tlie  Cotle  of  Civil  rnicfdun'.  the  duty  of  inaiiitaiii- 
injr  a  fence  after  its  oroctioii  is  upon  the  owiwr,  .-md  th«'  .•x|..'iis»>  of 
doing  so  is  included  in  the  danuiKc  allowed  for  ih.-  rl;;ht  of  way. 
Los  Anjrelcs,  etc.,  R.  R.  Co.  v.  RuuipP.  l'>4  Cal.  2<>. 

30  Broom's  Lor.  Ma.x.  .'{2!t;  Uicluirdsoti  v.  Kicr.  'M  ('•.\\.  <">.'?:  91 
Am.  Dec.  tiSl;  and  set-  Cuim  v.  K:iiln.:iil  Co..  :w;  W.  Vm.  1<k%;  :J2 
Am.  St.  Rop.  K42. 

STTonawanda  R.  R.  Co.  v.  MuuKcr.  ."•  Ix-n.  2."..".;  49  .\ni.  I  tec.  2;{H. 


§3010  FORMS   OF   (MniPLAlNT!^.  992 

remote,  the  action  can  be  sustained,  althoiigli  the  phuntifl"  is 
not  entirely  without,  fault/'"  So  in  the  case  of  injury  to  a 
domestic  animal  by  an  engine  and  train,  if  the  plaintilf  were 
guilty  of  negligence,  or  even  of  positive  wrong,  in  placing  his 
horse  on  the  road,  the  defendants  were  bound  to  exercise  a 
reasonable  care  and  diligence  in  the  use  of  their  road  and  man- 
agement of  their  train,  and  if  for  the  want  of  that  care  the 
injury  arose  they  are  liable.^^  The  negligence  which  disables 
a  plaintifl'  from  recovering  must  be  a  negligence  which  directly 
or  by  natural  consequence  conduced  to  the  injuij.^^  Where 
by  the  negligence  of  a  railroad  company  a  fire  is  communicated 
by  the  sparks  of  an  engine  to  the  premises  of  one  person,  and 
spreads  to  those  of  another,  the  railroad  company  is  liable  for 
the  injury  to  such  second  person  if  the  damage  is  the  natural 
or  direct  consequence  of  the  original  firing.^^ 

§  2010.  Negligence,  how  alleged.  Negligence  is  a  question 
of  fact,  or  mixed  law  and  fact;  and  in  pleading  it  has  been 
held  only  necessary  to  aver  negligence  generally,  not  the  spe- 
cific facts  constituting  negligence.*^  It  is  always  safer,  how- 
ever, to  allege  the  facts  constituting  the  negligence.  And 
where  the  negligence  consists  in  the  omission  of  a  duty,  the 
facts  which  are  relied  on  must  be  alleged.''^  A  complaint  for 
injury  by  negligence  must  show  the  defendant  to  be  in  actual 
default,  or  it  will  not  be  sustainable.**     In  Utah,  in  an  action 

38  Miss.  Cent.  R.  R.  Co.  v.  Mason,  51  Miss.  234. 

s9Needham  v.  S.  F.  &  S.  J.  R.  R.  Co.,  37  Cal.  409;  citing  Ker- 
whacker  v.  O.  C.  &  C.  R.  R.  Co.,  3  Ohio  St.  172;  C.  C.  &  C.  R.  R. 
Co.  V.  Elliott,  4  id.  474;  Bridge  v.  Grand  .Tunction  Railway  Co.,  3  M. 
&  W.  246;  Davis  v.  Mann,  10  id.  MG-  Illidge.v.  Goodwin,  .5  C.  &  P. 
190;  Mayor  of  Colchester  v.  Brooke,  53  E.  C.  1j.  370;  and  see,  also, 
Kline  v.  C.  P.  R.  R.  Co.,  37  Cal.  400;  99  Am.  Dec.  282. 

40  Richmond  v.  Sac  Val.  R.  R.  Co.,  18  Cal.  351;  McQuilkin  v. 
Central  Pacific  R.  R.  Co.,  64  id.  463. 

41  Henry  v.  S.  P.  R.  R.  Co.,  50  Cal.  176;  see,  also.  Perry  v.  S.  P. 
R.  R.  Co.,  id.  578. 

42McCauley  v.  Davidson,  10  Minn.  418;  see  §  1815,  ante 
4.^  City  of  Buffalo  v.  Holloway,  7  N.  Y.  493;  .57  Am.  Dec.  5.50; 
afnrming  S.  C.  14  Barb.  101;  Taylor  v.  Atlantic  I\Iut.  Ins.  Co.,  2 
Bosw.  106;  Congreve  v.  Morgan,  4  Dner,  439:  Seymour  v.  Maddox, 
16  Q.  B.  320;  S.  C,  71  Eng.  Com.  L.  326;  and  see  McGinty  v.  Mayor, 
etc.,  5  Dner,  074. 

44  Taylor  v.  Tlie  Atlantic  Mut.  Ins.  Co.,  2  Bosw.  106.  The  com- 
plaint of  a  servant  in  an  action  against  the  master  for  Injuries 


993  AGAINST   AGENTS,    ETC.,    FOR   NEGLIGENCE.  §  2011 

to  recover  damages  for  a  loss  occasioned  by  the  negligence  of 
a  railroad  company,  when  the  complaint  is  framed  to  recover 
on  the  common-law  liability  of  the  company,  the  defendant's 
negligence  must  be  proved.  If  the  plaintiff  fails  in  such  proof 
on  the  trial,  he  can  not  abandon  the  action  as  brought,  and 
claim  a  recovery  under  a  statute  Avhich  makes  the  company 
liable  as  an  insurer  against  such  a  loss  as  the  one  suffered  by 
him.^^ 

§  2011.  Co-operating  negligence.  It  has  been  held  in  New 
York  that  a  railroad  couijiany  is  not  liable  for  negligently  run- 
ning its  engine  upon  and  killing  domestic  animals  found  upon 
its  road,  unless  its  acts  were  heedless  and  wanton.*^  The  reason 
of  this  rule  is  co-operating  negligence  of  the  owner  of  the 
animals;  and  the  fact  of  the  trespass  of  the  animals  on  the 
property  of  the  defendant  constitutes  a  decisive  ol)stacle  to  any 
recovery  of  damages  for  injury  to  them.  It  is,  strictly  speaking, 
damnum  absque  injuria.*'^  The  general  rule  upon  which  the 
above  decisions  are  founded,  that  a  plaintiff  can  not  recover  for 
the  negligence  of  a  defendant,  if  his  own  want  of  care  or 
negligence  has  in  any  degi'ee  contributed  to  the  result  com- 
plained of,  was  approved  in  Gay  v.  Winter,  3-1  Cal.  153,  for  the 
reason  that  both  parties  being  at  fault,  there  can  be  no  appor- 
tionment of  the  damages,^^  and  not  that  the  negligence  of  the 
plaintiff'  justifies  or  excuses  the  negligence  of  tbe  defendant, 
which  would  seem  to  be  the  true  reason  in  the  estimation  of  the 
New  York  courts.'*'^  In  California  a  railroad  company  is  re- 
sponsible for  damages  done  to  cattle  by  running  over  them  on 
the  track,  if  the  accident  could  have  been  avoided  by  ordinary 
care  and  prudence  on  the  part  of  the  com])any,  and  this  though 
the  owner  of  the  cattle  permits  them  to  run  at  large  near  the 
line  of  the  railroad/'"'"  IWii  if  they  coulil  not  by  ordinary  care 
and  prudence  avoid  the  accident,  they  are  not  liable. ^''     The 

received  In  lil.s  service  must  fli!ir>r<>  iK'trllfrt-ufc  in  n'tCriMico  to  the 
pnrtieulnr  matter  proilucinn  tlic  injury.  I\nalitl;i  v.  Ilailroiid  ('c, 
21  Oroff.  VMk 

4.1  Davis  V.  T't.'ili  S.  I{.  U.  ("<►.,  ."!   Il.-ili,  L'lS. 

4''.  Soo  Tonnwandii  IJ.  If.  ''<>.  v.  .Munir<r.  .">  l><ii.  -••.'"i;  IH  Am.  Dec. 
2.'{9. 

47  1(1.:  see,  also,  Wilds  v.  Hudson  Kivor  U.  H.  Co..  24  N.  Y.  430. 

4«Trow  V.  Yc-rmoiif  C.  H.  IJ.  Co..  124  Vf.  41H:  .'")H  Am.  Dec.  191. 

4»  NVf'dliiim   V.  S.   I'.  »S>-   S.  .1.   1!,   K.  Co.,  ?,!  Cnl.  405). 

ROKifliniond    v.    Saf.    VjU.    K.    K.   Co.,    18   Cnl.    .'{.''.]. 

61  Id 

Vol.  I  — 125 


§2011  FOllMS    OF   COMPLAINTS.  1)94 

New  York  courts  seom  to  ignore  all  distinction  between  cases 
where  the  negligence  of  the  plaintill'  is  proximate  and  where 
it  is  remote;  and  in  not  limiting  the  rule»  of  liability,  which 
they  announce,  to  the  former.^^  The  false  reasoning  of  the 
New  York  courts  upon  this  question  has  been  ably  discussed 
by  the  Supreme  Court  of  Connecticut,  in  the  case  of  Isbell  v. 
N.  Y\  &  N.  H.  11.  Co.,  27  Conn.  404;  71  Am.  Dec.  78,  where 
it  says:  A  remote  fault  in  one  i)arty  does  not  of  course  dispense 
wdth  care  in  the  other.  It  may  even  make  it  more  necessary 
and  important,  if  thereby  a  calamitous  injury  can  be  avoided, 
or  an  unavoidable  calamity  essentially  mitigated.'^^  In  an  action 
against  a  railroad  company  to  recover  damages  for  the  killing 
of  a  pair  of  horses,  alleged  to  have  been  caused  by  the  negli- 
gence of  the  defendant  in  running  its  locomotive  and  cars, 
evidence  that  a  fence  alongside  of  the  defendant's  track  was 
out  of  repair,  and  that  the  horses  came  through  an  open  gate 
in  the  fence  onto  the  track,  is  inadmissible,  in  the  absence  of 
any  allegation  in  the  complaint  showing  that  the  gate  was 
left  open,  or  allowed  to  remain  open,  through  the  negligence 
of  the  defendant,  which  operated  as  a  proximate  cause  of  the 
injury.^*  So,  under  a  complaint  which  charges  the  injury 
complained  of  to  have  been  caused  by  the  negligence  of  a 
defendant  railway  company  in  permitting  a  bridge  on  its  road 
to  become  and  remain  out  of  repair,  and  failing  to  keep  proper 
watch  and  oversight  of  the  same,  the  plaintiff  will  not  be 
allowed  to  show  that  the  bridge  was  constructed  originally  in 
an  improper  and  negligent  manner,  and  this  for  the  reason  that 
the  proofs  and  allegations  must  correspond  with  each  other.^^ 
Negligence  is  sufficiently  charged  in  a  complaint  which  states 
that  the  defendant  railroad  com]iany  was  unlawfully  and  negli- 
gently occupying  a  street  crossing  with  its  engines  in  violation 
of  a  city  ordinance,  and  that  by  reason  of  that  fact,  and  without 

62  Neeflham  v.  S.  F.  &  S.  J.  R.  R.  Co.,  37  Cal.  409. 

53  So,  also,  see  the  Supreme  Court  of  Vermont,  in  the  case  of 
Trow  v.  Vermont  Central  R.  R.  Co.,  24  Vt.  494;  58  Am.  Dec.  191; 
where  the  rlistinction  between  "  proximate  "  and  "  remote  "  negli- 
gence  is  clearly  defined.  See,  also,  sustaining  these  principles, 
Hill  v.  AVan-en,  2  Starlv.  877;  Munroe  v.  Leach,  7  Met.  274;  Parker 
V.  Adams,  12  id.  41.5;  40  Am.  Dec.  <)94;  Brownell  v.  Flager,  5  Hill, 
282;  Brown  v.  IMaxwell,  (5  id.  .592;  41  Am.  Dec.  771;  "Williams  v. 
Holland,  fi  C.  &  P.  2.3. 

C4.Tahant  v.  Cent.  Pac.  R.  R.  Co.,  74  Cal.  9, 

MKnahtla  v.  Railroad  Co.,  21  Oreg.  136. 


995  AGAINST   AGEXTS,    ETC.,    FOR   NEGLIGENCE.        §§  2012-3015 

negligence  on  the  part  of  the  plaintilf,  the  injury  complained 
of  resulted.^^ 

§  2012.  Parties  plaintiff.  A  party  in  the  actual  possession 
of  cattle  at  the  time  of  the  injury  can  maintain  an  action  for 
an  injury  to  them  while  in  his  possession.^^ 

§  2013.  Several  acts  of  negligence.  Where  several  acts  of 
negligence  cause  but  one  injury,  the  plaintiff  may  allege  all  the 
acts  of  negligence  in  one  count,  and  aver  that  they  were  the 
cause,  and  any  one  of  them  proved  upon  the  trial  will  sustain 
his  complaint.^® 

§  2014.  For  kindling  a  fire  on  defendant's  land  whereby  plain- 
tiff's property  was  burned. 

Form  No.  510. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of    ,   18..,  at 

,  the  plaintiff  was  possessed  of  about 

acres  of  land,  in ,  on  which  there  was  an  orchard 

and  fences,  and  also  a  barn  containing tons  of  hay. 

II.  That  the  defendant  on  that  day  intentionally  kindled  a 
fire  on  his  land  next  adjoining  to  the  plaintiff's,  and  at  the 

distance  of yards  therefrom,  and  so  negligently 

watched  and  tended  the  said  fire  that  it  came  info  the  ])laintiff's 

said  land,  consumed  said  barn  and  hay  of  the  value  of 

dollars,  and  also  [state  special  damage "j. 

[Dkmand  of  JunGMKXT.] 

§  2015.  Against  railroad  companies.  The  fact  that  firo  was 
comniunicatcd  from  the  cTigine  of  defendant's  cars  to  ]»laintilT's 
grain,  with  proof  that  this  result  was  not  probable  from  the 
ordinary  working  of  flic  engine,  is  prima  facie  proof  of  m^gli- 
gence  sufTKiont  to  go  to  the  jury.''"  And  fbe  fact  that  a  rail- 
road company  permits  dry  grass,  which  will  readily  take  fire, 
to  remain  on  its  track,  is  competent  evidence  on  the  question 

BO  Denvor.  oto.,  R.  II.  Co.  v.  Itohbins.  2  Col.  App.  \\\^. 

67  Polk  V.  Coffin,  n  Cal.  HC. 

BSDifkins  V.  Now  York  Cent.  TJ.  U.  ri>..  1.".  IIow.  I'r.  L^liS;  :iiid  SCO 

8         ,  ante- 

BO  Hull  V.  Sne.   VmI.   H.   U.  Co.,   M   CmI.  .''.ST;  7.'',  Am.    Dor.  (V^O. 


g  •>I01G  FORMS   OF   COMPLAINTS.  996 

of  negligence,  althoiigii  not  negligence  per  sc.^^  Under  a  stat- 
ute making  railroad  companies  lial)le  for  iires  "  communicated  " 
by  their  engines,  a  railroad  company  is  lial)le  for  the  destruc- 
tion of  woods  half  a  mile  from  its  track,  by  a  lire  started  by  a 
spark  from  one  of  its  engines,  and  spreading  across  land  of 
dilfercnt  proprietors,  and  a  highway,  in  a  direct  line  to  said 
woods.^^  Such  corporation,  however,  is  not  liable  for  damages 
caused  by  sparks  emitted  from  one  of  its  locomotives,  if  the 
same  was  in  good  repair,  properly  constructed,  and  supplied 
with  the  best  appliances  in  use  to  prevent  the  escape  of  fire, 
unless  the  sparks  escaped  through  the  negligence  of  the  agents 
and  servants  of  the  company.^^ 

§  2016.  For  chasing  plaintiff's  cattle. 
Form  No.   511. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day   of    ,   18 .  . ,   at 

,  the  defendant  negligently  chased  and  drove  about 

[describe  the  cattle]  of  the  plaintiff. 

II.  That  by  reason  thereof,  the  said  [describe  the  cattle]  of 

the  plaintiff,  of  the  value  of dollars,  were  greatly 

damaged  and  injured,  and of  them  died,  and  the 

residue  of  them  were  injured  and  rendered  of  no  value  to  the 
plaintiff,  to  plaintiff's  damage  in   dollars. 

[Demand  of  Judgment.] ^^ 

60  Pen-y  v.  S.  P.  R.  K.  Co.,  50  Cal.  578;  see,  also,  Cleland  v. 
Thornton,  43  id.  437. 

eiPerley  v.  Eastern  R.  R.  Co.,  OS  Mass.  414;  96  Am.  Dec.  645; 
see,  also,  Illinois  Cent.  R.  R.  Co.  v.  McClelland,  42  ill.  3.55;  Same 
y.  Mills,  id.  407.  A  complaint  alleging  that  the  defendant  com- 
pany so  carelessly  and  negligently  managing  its  engine  and  train 
as  to  set  fire  to  dry  grass  on  land  adjoining  its  right  of  way,  which, 
without  negligence  on  the  plaintiff's  part,  spread  and  caused  the 
damage  complained  of,  charges  actionable  negligence  against  the 
company.  Hangen  v.  Railroad  Co.,  3  So.  Dak.  394.  If  the  defense 
of  contributory  negligence  is  available  in  an  action  against  a  rail- 
road company  for  damages  by  fire  caused  by  operating  its  line  of 
road,  it  can  not  be  invoked  in  the  absence  of  an  averment  in  the 
pleadings  uiwn  which  it  can  be  based.  Union  Pac.  Railway  Co.  v. 
Tracy,  19  Colo.  331. 

62  Smyth  V.  S.  &  C.  R.  R.  Co.,  3  West  Coast  Rep.  575. 

63  See  Kneier  v,  V7 atrous,  94  Cal.  592. 


997  AGAINST   AGENTS,    ETC.,    FOR   NEGLIGENCE.       §§  2017-2021 

§  2017.  For  keeping  dog  accustomed  to  bite  animals. 
Form  No.  312. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  time  hereinafter  mentioned,  the  defendant 
wrongfully  kept  a  dog,  well  knowing  him  to  be  of  a  ferocious 
and  mischievous  disposition,  and  accustomed  to  attack  and  bite 
[sheep  and  lambs,  or  as  the  case  may  be]. 

II.  That  on  the    day  of    ,   18 .  . ,  at 

,  the  said  dog,  while  in  the  keeping  of  the  defend- 
ant, attacked  and  bit  [or  hunted,  chased,  bit  and  worried], 
[sheep  or  lambs,  or  as  the  case  may  be],  of  the  plaintiff. 

III.  That  in  consequence  thereof,  the  said  [sheep  and  lambs, 

or  as  the  case  may  be]  of  the  plaintiff,  of  the  value  of 

dollars,  died,  and  became  of  no  value  to  the  plaintiff,  and  the 
residue  of  the  said  sheep  and  lambs  of  the  said  plaintiff,  being 
also  of  great  value,  were  injured,  and  rendered  of  no  value  to 
the  plaintiff,  to  his  damage dollars. 

[Demand  of  Judgment.] 

§  2018.  Joint  action.  In  New  York,  a  joint  action  does  not 
lie  against  the  joint  owners  of  the  dogs  by  whom  the  sheep  of 
a  third  person  have  been  worried  and  killed."^ 

§  2019.  Ownership.  It  is  not  necessary  to  prove  tbat  the 
defendant  owned  the  dog.  It  is  sufficient  to  prove  that  the 
defendant  kept  the  dog.^ 

§  2020.  Vicious  habits.  When  injury  to  plaintiff's  horse  was 
inflicted  by  that  of  the  defendant,  wliile  tre^]iassing.  it  was  held 
unnecessary  to  make  any  averments  of  vicious  habits."*^ 

§  2021.  For  shooting  plaintiff's  dog.''7 
Form  No.  513. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.   That  on  the    day   of    !«••-   at 

^  the  defendant  ninlifioiisly  sliol  ami  killed  a  dog, 

MVan  Steenborp  v.  Tobias,  17  W.-n-l.  :r,'l:  :'.l  Am.  Poo.  :nO; 
Auchmuty  v.  II;mi.   1    D.-n.    IK.-.;  s.-o  Ciji.t   v.   Ki.k.r.  71    M.-.    1S7: 

§  1S70,  ante 
65  Wilkinson  v.  I'.-irn.tt.  :  1!  Cii.  K'-;  Mmis.!  v.  Huwiumii.  <;-  Iowa. 

r>7;  and  see  §  1S71,  ante- 
«ni)unHvle   v.    Kockcr.    11    r..nl..    ::s7:    I'..i.pl''wrll    v.    IMriv...    10 

Cush.  rm. 

67  See,  as  to  rlgbt  of  action  for  un.n^rfull.v  killin;:  tlic  plaintin-fl 


§§  00-^2-2024  FORMS   OF   COMPLAINTS.  998 

the  property  of  the  plaintill',  of  the   vahie  of    

dollars,  to  the  damage  of  the  plaintill' dollars. 

[Demand  of  Judgment.] 

§  2022.   For  untying  plaintiff's  boat,  by  reason   of  which  it 
was  carried  by  the  current  against  a  bridge,  and  injured. 
l^'onii  No.  514. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18..,  the 

plaintiff  was  possessed  of  a  fishing  boat,  called  [etc.]  of  the 
value  of dollars. 

II.  That  the  defendant  maliciously  untied  said  boat,  and  it 
therefore  floated  with  the  stream  against  a  bridge,  and  was 
thereby  broken  and  destroyed,  to  the  damage  of  the  plaintiff 
dollars. 

[Demand  of  Judgment.] 

§  2023.  Collision.  In  case  of  collision  occasioned  by  the  fault 
of  a  vessel  under  compulsory  pilotage,  in  going  at  too  great 
speed,  where  no  contributory  negligence  on  the  part  of  the 
master  or  crew  is  proved,  the  owners  of  the  vessel  are  not 
liable.*'^  When  a  vessel  is  properly  in  cfiarge  of  a  licensed  pilot, 
the  owner  is  not  responsible  for  damages  which  may  ensue  from 
the  negligence  or  misconduct  of  the  pilot.^^ 

§  2024.  For  flowing  water  from  roof  on  plaintifE's  premises.?© 
Form  No.  515. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the   day  of   ,  18 .  . ,  the 

plaintiff  was  lawfully  possessed  of  a  dwelling-house  and  prem- 
ises, in  the  county  aforesaid,  and  in  which  the  plaintiff  and 
his  family  then  lived. 

II.  That  the  defendant  wrongfully  erected  a  building  near 
the  said  dwelling-house  of  the  plaintiff,  in  so  careless  and  im- 

doie,  Lowel  v.  Gathrifrht,  97  Ind.  313;  Wright  v.  Clark,  50  Vt.  1.%; 
28  Am.  Rep.  490:  New  York,  etc.,  R.  R.  Co.  v.  Auer,  106  Ind.  219; 
55  Am.  Rep.  734;  Jemison  v.  Railroad  Co.,  75  Ga.  444;  .5H  Am. 
Rep.  476. 

68  G.  S.  N.  Co.  v.  B.  &  C.  S.  N.  Co.,  L.  R.,  4  Excli.  238. 

69  Griswold  v.  Sharpe,  2  Cal.  17. 

70  Soo,  as  to  suffir-ipncy  of  complaint  in  an  action  for  damages 
for  flooding  the  plaintiff's  basement,  Durgin  v.  Neal,  82  Cal.  595. 


999  AGAINST   AGEXTS,    ETC.,    FOR   XEGLIGEXCE.       §§  2025,  2026 

proper  a  manner,  that  by  reason  thereof,  on  said  day,  and  at 
other  times  afterwards,  and  before  this  action,  large  quantities 
of  rain-water  ran  from  said  building  upon  and  into  the  said 
dwelling-house  and  premises  of  the  plaintilf,  and  the  walls,  ceil- 
ings [or  otherwise  state  damage  done,  according  to  the  fact], 
and  other  parts  thereof  were  thereby  wet  and  damaged,  and 
became  not  fit  for  habitation,  to  the  damage  of  plaintiff  in 

dollars. 

[Demand  of  Judgment.] 

§  2025.  For  negligence  of  millowners,  whereby  plaintiff's  land 
was  overflowed. 

For)n  iVo.  316. 
[Title.] 
The  plaintifi's  complain,  and  allege: 

I.  That  on  the   day  of   ,  18.  .,  the 

plaintiffs  were,  and  still  are,  the  owners  of  a  valuable  mining 
claim     [or    otherwise    designate    the    property],  situated    at 

,  upon  which  they  had  bestowed  great  labor  in 

putting  the  same  in  working  order. 

II.  That  at  the  same  time  the  defendants  were  the  owners 
of  [or  were  possessed  of  and  using]   a  reservoir  situated  on 

,  wherein  they  collected  a  large  body  of  water, 

which  would  otherwise  have  flowed  down  the  said  stream,  and 
were  engaged  in  furnishing  such  water  to  mintTS  and  others, 
by  means  of  a  ditch  or  canal. 

III.  That  afterwards,  on  the day  of , 

18..,  the  plaintiffs  were  engapd  in  their  work  as  aforesaid, 
and  the  defendants'  said  reservoir,  by  reason  of  some  defect  in  its 
construction,  or  insufficiency  for  tlie  pur]iose  for  wliich  it  was 
constructed,  broke  away,  discharging  an  iinmonse  and  unusual 
body  of  wjitcr,  wliich  they  had  collected  in  said  reservoir;  which 
said  water  so  discharged  flowed  in  and  upon  plaintiffs'  luming 
claim  [or  as  the  case  mny  be],  filling  tlie  snme  witli  large 
quantities  of  earth,  stone,  and  rubbisli.  lo  ihe  dam;i;:e  ol'  plain- 
tiffs in dollars. 

[Demand  of  Jcdcmfxt.] 

8  2026.  Avoidance  of  injuries.  The  fiul  tlini  jdninliffs  could 
have  prevented  tlic  damage  by  ])ulling  off  a  board  from  defend- 
ant's flume  is  no  defense,  becjiuse  they  were  not  (.bligcd  t«) 
avoid  the  injurieR  complained  of  by  committing  a  trespass." 

71  Wolf  V.  St.  T.niiis  IiKliiKii.l.rit   W;il.r  To..   IT.  Cnl.  mO. 


§§  ::iO:;i7-^029  EuiiMti  of  co-mi'lai^nts.  looo 

§  2027.  Construction  of  water  ditch.  The  quostiou  of  negli- 
gence in  tiio  nuiuagenient  oi'  a  water  ditch,  ami  the  degree  of 
it,  niiij^t  necessarily  depend  in  a  great  nieasui-e  upon  the  sur- 
rounding facts,  such  as  the  existence  and  exposure  of  property 
beh)\\  the  tlaui.^-  The  owner  of  a  tlani  is  l)ound  to  see  to  his 
own  property,  and  to  so  govern  and  control  it  that  injury  may 
not  result  to  his  neighbors.'^"^  In  consequence  of  the  negligent 
const inut ion  of  a  cut  made  by  the  defendants,  the  waters  of  a 
neighboring  river  Hooded  the  adjoining  land.  The  plaintiii' 
owning  land  east  of  the  cut  closed  the  culvert  to  prevent  his 
laud  being  flooded,  but  the  owners  on  the  west  reopened  it 
and  the  plaintiff's  land  was  flooded  in  consequence;  it  was  held 
j;hat  defendants  were  liable  for  the  whole  damage,  whether  the 
opening  was  right  or  wrong.'^'* 

§  2028.  Defect  in  construction  of  dam.  In  an  action  for 
damages  for  breaking  defendants'  dam  and  flooding  the  plain- 
tiff's mining  claim,  a  complaint  in  on©  count  charging  that 
"  the  defendants'  said  reservoir,  by  reason  of  some  defect  in 
its  construction,  insufficiency  for  the  purpose  for  which  it  was 
constructed,  or  carelessness  and  mismanagement  on  the  part  of 
the  said  defendants,  broke  away,"  etc.,  is  sufficient.'^^  Whether 
such  negligence  arose  from  the  want  of  care  in  constructing 
the  dam,  or  want  of  care  in  letting  off  the  water,  is  not  suffi- 
ciently material,  under  our  system  of  pleading,  to  require  sepa- 
rate counts. '^^  Whether  the  absence  of  waste-water  gates  in 
a  dam  is  negligence  is  a  question  for  the  Jury.'^''' 

§  2029.  Degree  of  care  necessary.  In  an  action  to  recover 
damages  for  an  alleged  injury  to  plaintiff's  land,  resulting  from 
the  careless  management  of  defendant's  water  ditch,  which 
traversed  the  land,  it  is  held  that  the  defendant  was  bound  to 
exercise  no  greater  care  to  avoid  the  alleged  injury  to  the  ad- 
joining lands  than  prudent  persons  would  employ  about  their 
own  affairs,  under  similar  circumstances."^^ 

T2Wolf  V.  St.  Louis  Inrlopendent  Water  Co.,  10  Cal.  541. 

TSFraler  v.  Sears  Union  Water  Co.,  12  Cal.  5.5-5;  73  Am.  Dec.  502. 

74  Collins  v.  Miflflle  Level  Commissioners,  L.  R.,  4  C.  P.  279. 

7".  Hoffman  v,  Tuolumne  County  Water  Co.,   10  Cal.  41.3. 

7C  Td. 

77Weiclekin(l  v.  Tuolumne  County  Water  Co.,  05  Cal.  431. 

78  Campbell  v.  B.  R.  &  Aub.  W.  &  M.  Co.,  35  Cal.  079. 


lOOlAGAlXST   AGENTS,    ETC.,    FOR    NEGLIGENCE.       §§  2030-2032 

§  2030.  Form  of  complaint.  A  complaint  which  alleges  that 
the  plaintiffs  were,  on  a  certain  day,  the  owners  and  proprietors 
of  a  certain  valuable  water  ditch  for  the  purpose  of  conveying 
water,  and  at  which  time  and  place  the  defendants  were  also 
the  owners  of  a  certain  other  water  ditch  for  the  purpose  afore- 
said, and  that  afterwards,  on  the  same  day  and  year,  at,  etc., 
aforesaid,  the  said  defendants'  ditch  was  so  badly  and  negli- 
gently constructed  and  managed,  and  the  water  therein  so  neg- 
ligently and  carelessly  attended  to,  that  said  ditch  broke  and 
gave  way,  and  the  water  therein  flowed  over  and  upon  the  ditch 
of  plaintiffs,  greatly  damaging  and  injuring  the  same,  and 
carrying  down  therein  and  thereon  great  quantities  of  rock, 
stone,  earth,  and  rubbisJi,  and  breaking  said  plaintiffs'  ditch, 
and  depriving  them  of  the  use  and  profit  of  the  water  flowing 
therein,  to  said  plaintiffs'  damage  $3,000,  and  thereof  they  bring 
suit,  is  sufficient."^ 

§  2031.  Mining.  If  a  party  engaged  in  coal  mining  causes 
water  with  earth  and  refuse  to  descend  upon  the  land  of  another 
so  as  to  destroy  the  value  of  such  land  for  cultivation,  as  the 
direct  result  of  the  act  of  the  miner  and  not  the  result  of  the 
law  of  gravitation,  the  person  whose  land  is  injured  may  recover 
damages.^^ 

§  2032.  Against  water  company  for  negligent  escape  of  water. 

Form  No.  517. 
[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  Tliat  on  the   day  of   1>!...   the 

plaintiff  was  in  the  possession  and  occupancy  of  tliat  certain 

buihling  situate  on street,  in  tlio  city  and  C(ninty 

of  San  Francisco,  known  as  No niul  was  engaged 

in   carrying  on   therein   a   general    mcrcliiindisf   bnsinc^ss,   a?id 

79Tuolumno  County  Wator  To.  v.  ('oliiml)!!!  iS:  StMtilsl.-nis  WiitiT 
Co.,  10  Cal.  It).*?.  ('(>iiii)I:iiiit  for  nc^'li^'i-iicc  in  ronslrnction  «>1' 
levoo,  sor»  Dc  Baker  v.  U:iilw!iy  Co..  IOC  C:il.  'lTu\  4t'.  Am.  SI.  Itejt. 
237.  Wliere  siic-li  couipliiint  is  not  delinite  :ni<I  specille  in  its.'lf  in 
repard  t<>  ilic  ifliilive  situation  of  tlH>  pi.-iintilT's  liind  ami  liie  irvee 
constnicttMi  l)y  defendants,  its  (iclicicnfirs  may  l»e  supjiiied.  as 
npainst  a  general  demnrn-i-.  Iiy  tlic  aid  of  fails  of  wliieli  tlie 
courts  1ai<o  judicial  notice.     Id. 

«o  Boliinsoji    V.    rdacl<    IHanioiKi    Coal    Co..   .Ml   C.-il.    If.ii;    Smitli    v. 
Fletclier,   L.   H.,  7  Exeh.  SOO. 
Vol.  I  — IL'G 


§  3033  FORMS   OF   COMPLAINTS.  1003 

owned  and  had  stored  therein  laj-ge  quantities  of  goods,  to-wit, 
,  of  the  vahie  of dollars. 

II.  That  the  defendant  is,  and  at  all  times  herein  mentioned 
was,  a  corjioration  duly  incorporated  and  existing  under  the 
laws  of  the  state  of  California,-  and  that  the  business  of  said 
corporation  has  been  and  is  to  sui)plY  tlic  inhabitants  of  said 
city  and  county  with  fresh  water,  which  water  was  and  is  sup- 
plied through  iron  pii)es  heretofore  laid  by  the  defendant 
through  the  princi})al  streets  of  the  said  city  and  county,  and 
the  said  pipes  were  and  are  owned  and  controlled  by  the  de- 
fendant. 

III.  That  at  all  times  herein   mentioned  a  water   pipe   or 

main  was  laid  on  said street,  through  which  water 

was  then  flowing  in  great  quantity,  and  with  great  velocity,  and 
under  great  pressure,  and  tliat  said  pipe  was  then  owned  and 
controlled  by  the  defendant,  and  was  used  by  it  in  conduct- 
ing and  distributing  water  to  the  inhabitants  of  said  city  and 
county. 

IV.  That  on  said  last-mentioned  day  defendant,  by  its  agents 
and  servants,  was  engaged  in  repairing  said  water  pipe  or  main, 

situate,  as  aforesaid,  on   street,  while  the  water 

was  flowing  through  said  main,  but  in  so  doing  did  not  use 
proper  or  any  care  therein,  as  it  could  and  should  have  done, 
by  shutting  off  the  flow  of  water  through  said  main  during  the 
process  of  making  said  repairs,  but  on  the  contrary,  said  de- 
fendant and  its  agents  and  servants  were  guilty  of  gross  negli- 
gence and  carelessness  in  endeavoring  to  make  said  repairs 
while  the  water  continued  to  flow  through  said  principal  main, 
and  thereby  a  large  quantity  of  water  was  permitted  to  escape, 
and  did  escape,  from  said  main  with  great  force  and  velocity 
and  under  great  pressure,  and  that  by  reason  thereof  said  water 
ascended  to  a  great  height,  to-wit,  to  the  height  of  forty  feet 
and  upwards,  and  fell  upon  the  roof  of  the  building  occupied 
by  the  plaintiff,  and  descended  into  the  floors  below,  and  flowed 
over,  u])on,  and  around  goods  which  this  plaintiff  then  owned 
and  had  there  stored,  and  completely  destroyed  and  rendered 
valueless  large  quantities  of  the  same,  which  were  then  of  great 
value,  to-wit,  of  the  value  of  one  thousand  dollars  and  upwards, 
to  the  great  injury  and  damage  of  this  plaintiff,  in  the  sum  of 
dollars. 

[Demand  of  Judgment.] 


1003AGAINST  AGENTS,    ETC.,    FOR  XEGLIGENCE.       §§  2033-2035 

§  2033.   For  iindermining  plaintiff's  land. 
Form  No.  518. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  at  the  times  hereinafter  mentioned,  the  plaintiff  was 
possessed  of  certain  land,  a  part  of  his  farm  in  the  town  of, 
etc.,  [briefly  describe.] 

II.  That  on  the day  of ,  18. .,  the  de- 
fendant wrongfully  and  negligently  excavated  the  land  adjacent 
to  the  plaintiff's  said  land,  without  leaving  proper  and  suffi- 
cient support  for  the  soil  of  the  plaintiff's  land  in  its  natural 
state,  whereby  it  sank  and  gave  way,  to  the  damage  of  plain- 
tiff in dollars. 

[Demand  of  Judgment.] 

§  2034.   For  vmdermining  plaintiff's  building. 
Form  No.  519. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  at  the  times  hereinafter  mentioned,  plaintiff  was  pos- 
sessed of  certain  land  with  buildings  thereon  [briefly  describe 
the  premises],  which  were  supported  by  the  adjacent  land  and 
the  soil  thereof,  and  that  the  plaintiff  was  entitled  to  have  them 
so  supported. 

II.  That  on  the  day  of  ,  18. .,  the 

defendant  wrongfully  and  negligently  excavated  the  land  ad- 
jacent to  plaintiff's  said  land  and  buildings,  and  removed  tlie 
earth  therefrom,  without  leaving  sufficient  support  for  plaintiff's 
said  land  and  buildings,  by  reason  whereof  the  same  sank  and 
gave  way,  and  the  house  fell  in  and  was  destroyed,  and  the 
furniture  of  the  plaintiff  was  damaged  and  broken;  and  the 

plaintiff  was  compelled  to  pay dollars  in  procuring 

another  house,  and dollars  in  removing  and  re- 
pairing his  goods,  and   dollars  in  removing  the 

ruins  of  the  house  and  rebuild iui:-  the  same,  to  his  damage  m 
dollars. 

[1)i:m.\xd  oi-  Judgment.] 

§  2035.   Reversioner,  allegation  by. 
Form  No.  520. 

That  at  the  times  hereinafter  mentioned,  the  plaintiff  was, 
and  still  is,  owner  of  certain  land  [briefly  describe  the  same], 
which  Mas  then  in  the  occupation  of  A.  U.,  as  tenant  thereof  to 
tlie  plaintiff. 


§§  20;Ki,  2037  FOKXIS   OF   COMPLAINTS.  1001 

§  2036.   For  not  using  due  care  and  skill  in  repairing. 
FoDii  No.  531. 
[Title.] 
The  plaintilT  complains,  and  alleges: 

I.  That  the  defendant  is  a  watchmaker,  at ,  and 

on  the day  of ,  18,  ,,  the  plaintiff  de- 
livered to  him,  as  such,  a  gold  watch  of  the  plaintiff,  of  the 

value  of dollars,  to  be  repaired  by  the  defendant, 

for  reward. 

II.  That  the  defendant  then  and  there  undertook  said  em- 
ployment, and  to  use  due  care  and  skill  in  repairing  said  watch, 
and  to  take  due  care  thereof  while  in  his  possession,  and  to  re- 
deliver the  same  to  the  plaintiff  on  request. 

III.  That  the  defendant  did  not  take  proper  care  of  the  said 
watch  whilst  in  his  possession,  and  did  not  use  due  care  or  skill 
in  repairing  the  said  watch,  but,  on  the  contrary,  did  his  work  in 
so  careless  and  unworkmanlike  a  manner  that  no  benefit  was  de- 
rived therefrom,  and  the  said  watch  was  broken  and  rendered 
worthless,  to  the  damage  of  the  plaintiff dollars. 

[Demand  of  Judgment.] 

§  2037.  Against  watchmaker,   for  not   returning  watch. 
Form  No.  522. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  [As  in  form  No.  521.] 

II.  [As  in  form  No.  521.] 

III.  That  after  a  reasonable  time  for  the  repair  of  said  watch, 
and  on  or  about  the day  of ,  the  plain- 
tiff requested  the  defendant  to  redeliver  the  said  watch;  but  he 

refused  so  to  do,  to  the  damage  of  the  plaintiff 

dollars. 

[Demand  of  Judgment.] 


CHAPTER  IV. 

SLANDER  OF  TITLE, 

I  2038.   Common  form. 

Form  Xo.  5-?j. 

[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18 . . ,  he  was 

the  owner  in  fee  of  [state  what  property],  situate  in 

[describe  it  particularly]. 

II.  That    on   that    day,    at    ,    the    defendant, 

maliciously  and  without  cause,  spoke  in  the  presence  of  A.  B, 
and  others  [name  them],  the  following  words  concerning  the 
plaintiff  and  his  property  [insert  the  exact  language  with  in- 
nuendoes]. 

III.  That  the  said  words  were  false. 

IV.  That  said  A.  B.  [or  others,  naming  them]  was  then  and 
there  negotiating  for  the  purchase  of  said  premises,  and  that 
by  reason  thereof  said  A.  B.  [or  others]  was  dissuaded  from 
making  such  purchase. 

V.  That  by  reason  of  the  said  words,  the  said  A.  B.  refused 
and  still  refuses  to  purchase  the  said  property  from  the  plaintiff, 
and  the  plaintiff  has  been  by  reason  thereof  unaljle  to  sell  the 
same,  and  has  been  otherwise  greatly  injured  thereby,  to  the 
damage  of  the  plaintiff dollars. 

[Demand  of  Judgment.]* 

§  2039.  Definition  —  essential  averments.  Slander  of  title  is 
publishing  language,  not  of  the  person,  but  of  his  right  or  title 
to  something.^  When  a  party  is  prevented  from  selling,  ex- 
changing, or  making  any  advantageous  disposition  of  lands  or 
other  property,  in  consequence  of  the  impertinent  interference 

1  As  to  the  action  for  slander  of  title  in  peneral,  see  r.ernrd  v. 
Dickenson.  4  Co.  IK;  Har>.'rave  v.  Le  Hreton,  Huir.  liJlTJ;  Karl  of 
NorfhunilK-riand  v.  Hyrt.  do.  .Tar.  IC-'i;  Vaujrlian  v.  lOliis.  id.  243; 
Sniitli  V.  SiKMjner.  .'{  Taunt.  24(;:  I'itt  v.  Donovan,  1  Man.  Ac  S.  030; 
2  C;re«'nl.  K\.  428.  As  to  what  plaintifT  must  establish.  se««  Like 
V.  McKlnstry,  41  Barb.  18<'i:  see,  also,  Towusbond  on  Slnnd.  &  Lib. 
240;  and  1  Stark,  on  Sland.  lOL 

2Townshend   on   Sland   \-    Lib.   240. 


I  2040  FORMS   OF    COMPLAINTS.  100(5 

of  the  defendant,  ho  may  maintain  an  action  for  the  incon- 
venience which  he  has  suirored,  hut  special  damage  must  be 
shown.3  rpj^p  action  for  shmder  of  title  is  not  restricted  to  lan- 
guage alfecting  real  property.  It  lies  for  slander  of  title  to 
personal  property.^  To  maintain  an  action  for  slander  of  title 
to  lands,  the  words  must  be  false,  must  be  uttered  maliciously, 
and  be  followed  as  a  natural  and  legal  consequence  by  a  pecuni- 
ary damage,  which  must  be  especially  alleged  and  proved;"^  and 
the  name  of  the  person,  as  above  stated,  who  refused  to  purchase 
or  make  the  loan  or  purchase  in  consequence  of  the  slander, 
should  be  stated  in  the  complaint.® 

§  2040.  Damage  —  malice  —  probable  cause.  The  damage 
sought  to  be  recovered  must  be  specially  alleged  in  the  com- 
plaint, and  substantially  proved  on  the  trial.  It  must  be  a 
pecuniary  damage,  and  must  be  the  natural  and  legal  conse- 
quence of  the  wrong.'^  When  the  damages  arise  from  the 
plaintiff's  being  precluded  from  selling  or  mortgaging  the  prop- 
erty which  is  the  subject  of  the  slander,  it  is  essential  in  stating 
a  cause  of  action  to  name  the  person  or  persons  who  refused 
from  that  cause  to  loan  or  purchase.  An  omission  to  do  so  will 
render  the  complaint  demun-able.^  It  is  error  for  the  court  to 
instruct  the  jury  that  where  a  person  injuriously  slanders  the 
title  of  another,  malice  is  presumed,  or  that  fraud  could  not  be 
presumed,  but  may  be  established  by  circumstances,  but  not  of 
a  light  character;  the  circumstances  must  be  of  a  most  conclu- 
sive nature.^  Malice  and  damage  are  both  essenti-al  requisites 
to  sustain  an  action  from  language  concerning  a  thing.     To 

3  1  Stark,  on  Sland.  191. 

4  Tovv-nshend  on  Sland.  &  Lib.  24,5.  For  complaint  in  an  action 
to  recover  damages  for  false  statements  made  by  the  defendants, 
in  regard  to  patent  and  manufactures  of  the  plaintiff,  to  the  injuiy 
of  his  business,  see  Snow  v.  Judson,  38  Barb.  210. 

5  Kendall  v.  Stone,  5  N.  Y.  14;  reversing  S.  C,  2  Sandf.  2G9; 
Burlvett  V.  Griffith,  90  Cal.  532;  25  Am.  St.  Rep.  151;  see  Like  v. 
McKinstiT,  41  Barb.  186. 

C3  Bing.  N.  C.  371;  Cro.  Car.  140;  Cro.  Jac.  484;  3  Keb.  153; 
Style,  109;  Kendall  v.  Stone,  5  N.  Y.  14;  Tobias  v.  Harland,  4  AVend. 
537;  Saund.  PI.  &  Ev.  243:  Sliipman  v.  Burrows,  1  Hall,  399;  Linden 
V.  Graham,  1  Duer,  670;  Bailey  v.  Dean,  5  Barb.  297. 

7  Kendall  v.  Stone,  2  Sandf.  269;  S.  C,  5  N.  Y.  14;  Burkett  v. 
Griffith,  90  Cal.  532;  25  Am.  St.  Rep.  151. 

s  Linden  v.  Graham,  1  Duer,  670;  11  N.  Y.  Leg.  Obs.  185. 

9  McDaniel  v.  Baca,  2  Cal.  326;  56  Am.  Dec.  339. 


1007  SLAXDER   OF   TITLE.  §  2040 

these  requisites  are  usually  added  a  third,  that  the  language  is 
false.^*^  To  sustain  an  action  for  slander  of  title,  there  must  be 
want  of  probable  cause,  and  special  damages  must  be  alleged, 
and  that  circumstantially.  A  general  allegation  of  loss  will 
not  be  sufficient.  Nor  will  a  defendant  be  responsible  for 
what  he  says  or  does  in  pursuance  of  a  claim  of  title  in  himself, 
provided  there  be  good  ground  for  such  claim.^^  The  averment 
that  it  was  without  probable  cause  is  proper. 

•     lOTownshend  on  Sland.  &  Lib.  239. 

11  Bailey  v.  Dean,  5  Barb.  297.  The  action  will  only  lie  by  reason 
of  prejudice  in  a  sale,  and  in  order  to  show  that  the  words  uttered 
have  caused  injui-y,  it  is,  generally,  necessary  to  aver  and  show 
that  they  were  uttered  pending  some  treaty  or  public  auction  for 
sale  of  the  property,  and  that  thereby  some  intending  purchaser 
was  prevented  from  bidding  or  competing.  Burltett  v.  Griffith,  90 
Cal.  532;  25  Am.  St.  Rep.  151.  And  it  is  necessary  for  the  plaintiff 
to  set  forth  and  describe  in  his  complaint,  in  direct  terms,  the 
property  respecting  which  the  defamatory  statements  were  made, 
as  well  as  to  aver  title  thereto,  so  that  it  may  be  shown  wliereir. 
the  defendant  had  done  him  an  injury.  Id.  Complaint  sufficiently 
setting  forth  a  good  cause  of  action  for  slander  of  title.  See  Dodge 
V.  Colby,  108  N.  Y.  445;  affirming  37  Hun,  515. 


CHAPTER  V. 

TRESPASS. 

§  2041.  For  malicious  injury,  claiming  increased  damages 
Under  the  statute. 

Form  No.  524. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the day  of ,  18 ..,  the  de- 
fendant maliciously  and  wantonly  destroyed  certain  ornamental 

trees,  of  the  value  of dollars,  the  property  of  the 

plaintiff,  growing  upon  his  land   [or  as  the  case  may  be],  at 

[by  barking  and  girdling  them,   or  otherwise 

state  nature  of  injury,  if  not  totally  destroyed],  contrary  to 
the  forms  of  the  statute  in  such  cases  made  and  provided. 
[Demand  of  Judgment  for  Treble  Damages.] 

§  2042.  Abatement  of  action.  At  common  law  a  trespass  dies 
with  the  trespasser.''  In  California  section  1584  of  the  Code  of 
Civil  Procedure  has  changed  the  rule.  It  provides  that  "Any 
person,  or  his  personal  representatives,  may  maintain  an  action 
against  the  executor  or  administrator  of  any  testator  or  intestate, 
who,  in  his  lifetime,  has  wasted,  destroyed,  taken,  or  carried 
away,  or  converted  to  his  own  use,  the  goods  or  chattels  of  any 
such  person,  or  committed  any  trespass  on  the  real  estate  of 
such  person." 

§  2043.  Agent.  If  the  trespass  has  been  committed  by  one 
acting  as  the  agent  of  the  defendant,  it  may  be  so  alleged.^ 
AVhere  two  of  the  defendants  actually  committed  the  act,  and  a 
third  defendant  instigated  and  employed  them  to  do  it,  it  may 
be  so  alleged.^ 

§  2044.  Assignee.  An  assignee  in  trust  for  the  benefit  of 
creditors  may  maintain  an  action  of  trespass  against  any  person 
who  interferes  with  the  assigned  property.^     A  claim  for  dam- 

a  O'Connor  v.  Corbitt,  3  Cal.  370. 

1  St  John  V.  Griffitli,  1  Abb.  Pr.  39. 

2  Ives  V.  Hunipbrt-ys,  1  E.  D.  Smith,  19a 

3  McQueen  v.  Babcock,  41  Barb.  337. 


1009  TRESPASS,  §§  2045,  2046 

ages  caused  by  a  trespass  on  land  is  assignable,  and  the  assignee 
may  maintain  an  action  to  recover  the  same.'* 

§  2045.  Cotrespassers  —  allegation  of.  11"  it  be  sought  to 
charge  another  with  the  trespass,  at  whose  instigation  and  re- 
quest the  trespass  was  committed  singly,  it  may  be  alleged  as 
follows:  "  That  on  the,  etc.,  one  A.  B..  at  the  instigation  and 
request  of  the  defendant,  and  being  by  him  employed  thereto 
and  assisted  therein,  broke  and  entered,"  etc.  Or,  if  it  be 
sought  to  make  both  cotrespassers,  it  may  be  alleged:  "  That 
on,  etc.,  the  defendant  A.  B.,  at  the  instigation  and  request 
of  the  defendant  C.  D.,  being  by  him  employed  thereto  and 
assisted  therein,  broke  and  entered,"  etc.^  For  all  persons  who 
direct  or  request  another  to  commit  a  trespass,  are  liable  as  co- 
trespassers.^  Where  a  trespass  has  been  committed  by  two  or 
more,  by  joint  act  or  co-operation,  they  are  all  trespassers,  and 
liable,'^  if  they  acted  in  concert,  or  the  act  of  one  naturally  pro- 
duced the  act  of  the  other.^  Where  several  defendants  are  de- 
clared against  jointly,  but  no  joint  trespass  is  proved,  the  plain- 
tiff can  introduce  evidence  of  a  several  trespass  against  one  of 
the  defendants,  and  recover  against  such  defendant.  A  liter, 
if  a  joint  trespass  has  been  proved.^ 

S  2046.  Damages  —  exemplary  and  vindictive.  Exemplary  or 
vindictive  damages  can  not  1)0  recovered  for  a  trespass  not 
malicious  in  its  character.^^  And  the  rule  of  damages  depends 
upon  the  presence  or  al)sence  of  fraud,  malice,  or  o]>pression.^^ 
In  the  absence  of  such  circumstances  the  rule  is  compensation 
merely,  and  this  refers  solely  to  the  injury  done  to  the  jji-op- 
erty,  and  not  collateral  or  consequential  danutges  residting  to 
the  owner.'-  A  party  committing  a  trespass  can  be  made  lia- 
ble for  such  damages  only  as  are  the  proximate  result   of  the 

4  More  V.  Massini,  32  Cal.  r>l)0. 

5  Itos  v.  Iluniphroys,  1  E.   I).  Sinitli,   Hit;. 

«2  Hill,  on  Torts,  2<Xi;  Ilcrrinp  v.  Hoi)j>ock,  ir>  N.  V.    h:'.. 

7  2  Hill,  on  Torts.  2fJ2;  Hair  v.  Liftlf.  2H  Ala.  2'M\\  also.  Houston 
V.  Nord.  89  Minn.  400. 

«  Broolcs  v.  riarlu',  <\  Taunt.  211;  and  spo  .Mci'loslci'.y  v.  Powoll.  121^ 
I'cnn.  St.  (;2:  10  .\in.  St.  Koj).  .''.12;  State  v.  Smith.  78  Me.  2<50;  r>7 
Am.  Rej).  S02. 

i»  Mcr'nrron  v.  O'Conncli.  7  ("al.   1.".2. 

10  Seidell  V.  Caslunan,  20  Cal.  r»(;;  HI   Am.  Dee.  03. 

11  Horsey  v.  Manlove,  14  Cal.  5r>3. 

12  Id. 

Vol.  I  — 127 


5j  -iO-i^  FORMS    OF    COMPLAINTS.  1010 

trespass.^^  The  right  of  the  phuntilT  to  recover  damages,  is  not 
aH'oeted  by  tlio  fact  that  the  trespass  was  not  willful^"*  Where 
trespass  is  eoininitted  from  wanton  or  malicious  motives,  or  a 
reckk^ss  disregard  of  the  riglits  ol'  otliers,  or  under  eireumstanccs 
of  great  hardship  or  oppression,  the  rule  of  mere  compensation 
is  not  enforced,  and  punitive  or  exemplary  damages  may  he 
enforced. ^^ 

s  2047.  Designation  of  land.  The  lines  of  a  quarter  section 
of  government  land,  distinctly  marked  by  natural  boundaries 
and  stakes  placed  at  convenient  distances,  so  that  the  lines  can 
be  readily  traced,  are  sntficient  to  authorize  an  action  for  tres- 
pass thereon  under  the  provisions  of  the  act  of  April  11,  18.50.^" 
When  two  mining  claims  adjoin  each  other,  the  ignorance  of  the 
owners  of  one  company  of  the  dividing  line  will  not  excuse  a 
trespass  upon  tlie  land  of  another.^'^  Wliere  the  town  is  sul)- 
divided  intermediate  the  trespass  and  the  commencement  of  the 
action,  the  trespass  may  be  laid  to  have  been  done  in  the  original 
town.^^ 

13  story  V.  Robinson,  32  Cal.  205;  and  see  Empire  Gold  Min.  Co. 
v.  Bouauza  Gold  Min.  Co.,  G7  id.  406;  Patchen  v.  Keeley,  lit 
Nev.  404. 

14  Maye  v.  Yappan,  23  Cal.  306. 

15  Dorsey  v.  Manlove,  14  Cal.  553;  see  Cal.  Civil  Code,  §§  3294  and 
3346;  Gorman  v.  So.  Pac.  Co..  97  Cal.  1;  33  Am.  St.  Rep.  157;  Pear- 
son V.  Zehr,  138  111.  48;  32  Am.  St.  Rep.  113.  A  complaint  for 
trespass  to  real  property  must  contain  a  specific  and  certain  aver- 
ment of  the  actual  damage  done  to  the  property,  even  tbonsli 
exemplary  damages  may  be  claimed  for  injury  thereto  under  cir- 
cumstances of  aggravation,  and,  if  the  actual  damage  to  the 
property  is  not  averred  with  certainty,  a  demurrer  for  uncertainty 
on  that  ground  should  be  sustained.  Lamb  v.  ITorbaugh,  105  Cal. 
680. 

ic  Taylor  v.  Woodward,  10  Cal.  90;  see  the  case  of  Stockton  v. 
Garfrias,  12  id.  315. 

17  Maye  v.  Yappan,  23  Cal.  306;  see  Nevada  County  &  Sac. 
Canal  Co.  v.  Kidd,  37  id.  282. 

18  Renaudet  v.  Croken.  1  Cai.  167;  S.  C.  Col.  &  C.  Cas.  219.  In  an 
action  to  recover  damages  for  a  trespass  alleged  to  have  been 
committed  on  the  south  half  of  a  certain  land  claim,  evidence  of 
the  Avrong  must  be  confined  to  the  particular  tract  of  land 
described  in  the  comi)lnint.  .lennings  v.  Meldrum,  15  Oreg.  629. 
The  description  of  the  jtreinises  in  tlie  coniidaint  as  a  mining 
claim  of  certain  dimensions,  with  a  reference  to  the  location 
certificate  and  the  patent  for  metes  and  bounds,  is  sufficient.  Rico- 
Aspen,  etc.,  Min.  Co.  v.  Enterprise  Min.  Co.,  .56  Fed.  Kep.  131. 


1011  TRESPASS.  §§  2048-2054 

§  2048.  Ditch.  A  person  has  no  right  to  run  a  ditch  through 
the  inclosure  of  another  without  his  consent.^* 

g  2049.  Entry  without  force.  When  the  complaint  charges 
an  entry  upon  and  injury  to  plaintiif's  property,  and  does  not 
charge  force,  the  issue  was  hekl  to  be  contined  to  the  actions 
of  the  party  after  the  entry,  and  to  the  damages  resulting  from 
the  same.^ 

s  2050.  Equitable  relief.  In  an  action  for  trespass,  the  law 
and  equity  must  not  be  inseparably  mixed  together.  The  al- 
legations must  be  separate,  distinct,  certain. ^^  But  it  is  not  nec- 
essary that  there  should  be  express  words;  showing  where  the 
declaration  in  trespass  leaves  off,  and  the  bill  in  equity  begins. ^- 

§  2051.  Essential  facts.  When  a  pleader  wishes  to  avail  him- 
self of  any  statutory  j)rivilege  or  right,  given  by  particular  facts, 
those  facts  which  the  statute  requires  as  the  foundation  of  the 
right  must  be  stated  in  the  complaint.^ 

§  2052.  Estate  in  possession,  reversion  and  remainder.  In 
New  York,  any  person  seized  of  an  estate  in  possession,  re- 
mainder, or  reversion,  may  bring  an  action  under  the  statute, 
notwithstanding  an  intervening  estate  for  life  or  yoars.^-' 

§  2053.  Forcible  and  unlawful.  The  acts  alleged  must  be 
essentially  acts  of  trespass,  forcible  and  unlawful,  but  it  need 
not  be  alleged  that  the  entry  was  unlawful.^'' 

S  2054.  Foreign  miners.  The  fact  that  parties  arc  foreigners, 
and  have  not  obtained  a  license  to  work  in  the  mines,  affords  no 
apology  for  trespass.^ 

inWf'lTTier  v.  Lowory.  11  Cal.  104. 

^JOTuriHT  V.   McCarthy,  4  E.   D.   Smith,  247. 

21  Sfe  Gates  v.  Kieff,  7  Cal.  124. 

-2  Id.  The  conii)laint  In  au  action  to  enjoin  tho  connnlKslon  of 
trf'spasses  ui)on  land  1h  defective  when  trespasses  are  pleaded 
ill  freneral  allegations  only.  Wilkeson,  efr..  Coke  Vn.  v.  Driver. 
•I  Wnsh.   St.   177. 

23  r>ye  v.  Dye,  11  f'.:\\.  K",?..  As  to  the  essetitijil  f.-icls  to  m.-iliitaln 
the  netion,  see  Wllliird   v.  W.Trren,   17  Wend.  li.'»7. 

2-t  \'!in   Dciiscn   V.  Vniui^'.  L><i  l'.!irl>.  !>. 

2f.  Id. 

26Mitehell  v.  IlaKfK.d.  r,  Cal.  148. 


§  :-iOb5  FORMS   OF   COMPLAINTS.  1013 

S  2055.  Joinder  of  cause.  ]n  a  complaint  for  trespass  the 
plaintiir  claimed  five  hundred  dollars,  and  alleged  value  of  the 
projierty  destroyed,  and  live  hundred  dollars  damages.  JJefend- 
ant  demurred  on  the  ground  that  two  causes  of  action  were  im- 
properly joined,  and  the  coiirt  helow  sustained  the  demurrer; 
it  was  held  that  this  was  error.^"  In  an  action  of  trespass,  an 
allegation  of  injury  to  the  "  site  for  a  dam,"  and  "  dam  in  course 
of  construction  thereon,"  and  "  site  for  a  canal,  and  canal 
thereon  projected,  surveyed,  and  commenced,"  constitutes  but 
a  single  cause  of  action.  They  are  land,  and  for  the  purposes 
required  must  necessarily  be  connected  and  continuous.^^  But 
the  water  right  when  acquired,  although  intimately  related  to 
and  connected  with  the  site  for  a  canal  and  dam,  and  canal  com- 
menced, etc.,  give  rise  to  separate  and  distinct  causes  of  action.^^ 
The  owner  of  land  may  join  in  the  same  complaint,  a  claim 
for  damages  as  assignee,  caused  as  a  trespass  on  the  land  while 
it  was  owned  by  his  grantor,  and  a  claim  for  an  injunction  for 
a  threatened  injury  to  the  land.^"  A  party  can  not  join  an 
action  of  trespass  qiiarc  clausuui  f regit  with  ejectment,  and  i)ray 
for  an  injunction. '"^^  A  complaint  in  trespass  averring  that  the 
defendant  wrongfully  entered  upon  the  plaintiff's  close  and  re- 
moved earth  and  gravel  therefrom,  destroyed  ornamental  sliade 
trees  growing  thereon,  tore  off  and  removed  the  boards  from  an 
entire  wall  of  the  plaintiff's  building,  darkened  the  plaintiff's 
windows,  and  erected  another  building  on  the  premises,  to 
the  damage  of  the  plaintiff,  in  a  specific  sum,  is  not  demurrable 
for  misjoinder  of  causes  of  action,  nor  for  ambiguity;^^  but  a 
complaint  alleging  that  by  wrongful  acts  of  the  defendant  the 
property  of  the  plaintiff  was  damaged,  her  character  was  injured, 
and  that  her  health  has  been  permanently  impaired,  and  that 
by  reason  of  all  these  acts  she  has  been  damaged  in  a  specified 
sum,  for  which  she  asks  judgment,  shows  a  misjoinder  of  dis- 
tinct causes  of  action,  forbidden  1)y  section  437,  California  Code 
of  Civil  Procedure.^^ 

27  Tendesen  v.  Marshall,  3  Cal.  440. 

28  Nev.  Co.  &  Sac.  Canal  Co.  v.  Kidd,  37  Cal.  309. 

29  Id. 

so  More  v.  Massini,  32  Cal.  .590. 

31  Bitrelow  v.  Gove,  7  Cal.  1.S3;  see  §  31.5,  ante. 

82  Htrohlburg  v.  Jonos,  78  Cal.  .381. 

33  Lamb  v.  Ilarbaugh,  105  Cal.  680. 


1013  TRESPASS.  §§  2056-2060 

§  2056.  Joinder  of  parties.  A  plaintiff  can  not  by  mere 
notice  bring  in  parties  not  sued  in  an  action  of  trespass  when 
there  is  no  pretense  that  they  were  trespassers.^"*  In  an  action 
by  the  parties  whose  property  has  been  wrongfully  taken  under 
legal  process,  all  who  join  or  participate  in  the  trespass  are 
jointly  liable  as  joint  trespassers.^^ 

§  2057.  Jurisdiction.  In  California  the  superior  courts  have 
jurisdiction  of  all  actions  to  recover  damages  for  trespass  upon 
lands  if  the  right  of  possession  is  put  in  issue  regardless  of  the 
amount  of  damages  claimed.-^*^ 

§  2058.  Mining  claim.  In  an  action  for  trespass  upon  a 
mining  claim,  where  the  complaint  avers  that  the  defendants  are 
working  upon  and  extracting  the  mineral  from  the  claim,  and 
prays  for  a  perpetual  injunction,  and  the  answer  admits  the 
entry  and  work,  and  takes  issue  upon  tlie  title  of  the  mine,  and 
the  jury  find  in  favor  of  the  plaintiffs,  the  court  should  decree 
the  equitable  relief  sought,  and  enjoin  defendants  from  future 
trespasses.^''^ 

§  2059.  Ouster.  No  ouster  is  necessary  to  maintain  an  ac- 
tion of  trespass.     Any  unlawful  entry  is  enough.'"' 

g  2060.  Possession  and  right  of  possession.  In  an  action  of 
trespass  upon  real  property  the  plaintiff  may  recover  upon  al- 
leging and  showing,  in  addition  to  the  injury  complained  of, 
his  possession  of  the  premises:  and  his  riglit  to  tbe  possession 
is  not  involved  unless  the  defendant  tenders  an  issue  upon 
the  fact,  and  in  that  case^®  the  right  of  recovery  depends  both  on 
possession   in   fact   and    the  right   of   possession.*"     Possession 

34  Pifo  V.  Webstoi.-,  14  ('ill.  202. 

85  Lfwis  V.  Johns,  34  Cal.  r,L>l). 

3T  r'ullcn  v.  T.an^TidKe.   17  Cal.  <;7;  f'al.  Codr  Civ.   T'ro.,  S  r>7. 

37McLauKliliii  v.  K«'ll.v,  22  Cal.  211.  Action  for  Injni-j-  to  mlnlnc 
claim.  S('«»  M^Folers  v.  Piorson.  !.'►  Col.  2ol ;  22  .\ni.  St.  Rop. 
888;  Noonday  Min.  Co.  v.  Mining  Co.,  (J  Sawyer.  2S>1t.  In  a  nnlt 
ajrainst  a  railroad  fouipany  for  damages  for  taking'  »  |>ortion  of 
a  nilninfT  claim,  and  cnttinp  tinibcr  tlicrcon.  !i  complaint  sliowlnc 
an  entiy  witliout  ijcrnd.ssion  on  a  mininjr  cl.-iim  In  the  jjlaintlffs' 
I)Oss('ssi<in,  and  tin-  dointr  .'in  iiiJiUT  to  tin-  soil  and  timlHT, 
snfficicnfly  nvcrs  posscsslim.  ••iilry,  and  iIjiiiiml'i'.  .Iiickson  v.  I>inc9, 
i:i  Cf.l.  00. 

RS  Rowc  V.  Hradloy.  12  Cal.  22('.:  HmIiIi   v.    Itoiiiiril.  74    Mc   H'k3. 

noilolnian  v.  Taylor.  .'51   Cal.  ?,'AS. 

■♦0  p„lI,Kk  V.  CuiiiniiiiKM.  '''X  Cal.  »).K.'{. 


§  2061  FORMS  OF  COMPLAINTS.  1014 

in  the  plaintiff  is  sufficient  to  enable  him  to  maintain  an  action 
for  trespass,  and  although  a  higlier  title  may  be  attempted  to 
be  set  up,  the  failure  to  sustain  it  will  not  operate  against  the 
right  to  recover  damages.^^  The  defendant  has  no  right  to 
inquire  into  the  good  faith  of  plaintiff's  possession.'*^  To  main- 
tain an  action  of  trespass  quare  claiisum  f regit,  it  was  formerly 
held  necessary  for  the  plaintiff  to  establish  an  actual  possession 
of  the  locus  in  quo,  but  under  more  modern  decisions  a  con- 
structive possession  is  held  sufficient.'*^  Actual  possession  is 
sufficient  to  maintain  such  action  against  a  mere  stranger  or  in- 
truder. The  possession  by  the  tenant  is  possession  by  the  plain- 
tiff sufficient  to  support  this  averment.'*''  It  is  enough  to  show 
possession  at  the  time  of  the  injury.'*' 

§  2061.  Tearing  down  gate.  If  the  complaint  in  an  action 
for  an  alleged  trespass  avers  that  defendants  unlawfully  entered 
on  plaintiff's  land  and  tore  down  a  gate,  the  gist  of  the  action  is 
the  entry,  and  the  removal  of  the  gate  is  a  mere  matter  of 
aggravation,  and  if  the  plaintiff  fail  to  prove  the  gist  he  can 
not  recover  for  the  aggravation.^® 

41  McCarron  v.  O'Connell,  7  Gal.  152;  Bequette  v.  Caulfield,  4 
Id.  278;  60  Am.  Dec.  615;  Fitzgerald  v.  Urton,  5  Cal.  308;  Palmer 
V.  Aldridge,  16  Barb.  131,  and  cases  cited;  Hall  v.  Warren,  2 
McLean,  332;  and  see  Canavan  v.  Gray,  64  Gal.  5;  Stahl  v.  Gi'over, 
80  Wis.  650;  Spurlock  v.  Railroad  Go.,  13  Wash.  St.  29;  Marks  v. 
Sullivan,  8  Utah,  406;  Hill  v.  Water  Commissioners,  77  Hun,  491. 

•i2Eberhard  v.  Touluniue  Gounty  Water  Go.,  4  Gal.  308. 

43  See  Nev.  Co.  &  Sac.  Canal  Co.  v.  Kidd,  37  Gal.  282;  Moon 
V.  Avery,  42  Minn.  405;  Randall  v.  Sanders,  87  N.  Y.  578. 

44  Sumner  v.  Tileston,  7  Pick.  198;  Lindenbower  v.  Bentley,  86 
Mo.  515;  Gunsolus  v.  Lormer,  54  Wis.  630. 

45  Vowles  V.  Miller,  3  Taunt.  137.  Where  the  plaintiff  shows 
facts  which  would  entitle  him  to  relief  in  a  common-law  action 
on  the  case,  the  fact  that  he  alleges  that  he  was  in  possession  is 
immaterial,  and  the  allegation  may  be  treated  as  surplusage. 
Rogers  v.  Durhart,  97  Gal.  500.  For  averments  on  a  complaint  for 
undermining  the  party  wall  of  plaintiff's  house,  see  Eno  v.  Del 
Vecchio,  4  Duer,  53.  For  averments  of  complaint  for  an  injunc- 
tion restraining  defendant  from  excavating  to  undermine  plaintiff's 
land,  see  Farrand  v.  Marshall,  19  Barb.  380.  For  in.inries  to  trees, 
timl)er,  or  underwood,  and  damages  tlierefor,  see  Gal.  Civil  Code, 
§  .3.346.  As  to  ownership  of  trees  in  or  along  a  highway,  see  Cal. 
Political  Code,  §  2(^31.  As  to  ownership  of  trees  whose  trunks 
stand  wholly  ui)on  the  land  of  one,  though  the  roots  grow  into 
the  land  of  another,  see  Gal.  Civil  Code,  §  833.  As  to  line  trees, 
see  Id.,  §  834. 

4«  Pico  V.  Colimas,  .32  Gal.  578. 


1015  TRESPASS.  §§  2062-2065 

§  2062.  Tenants  in  common.  Ordinarily  and  at  common 
law  trespass  will  not  lie  by  one  tenant  in  common  against  his  co- 
tenant;  but  when  one  tenant  in  common  destroys  the  subject  of 
the  tenancy,  trespass  will  lie  at  the  suit  of  the  injured  party.*^ 
But  one  tenant  in  common  can  not  maintain  trespass  against 
another  for  taking  in  the  ordinary  course  the  whole  profits 
of  land.^®  If  title  is  alleged,  a  general  averment  will  be  suffi- 
cient, without  setting  out  the  source  of  title.'*'-*  And  the  al- 
legation of  title  sufficiently  imports  possession  in  an  action  of 
trespass  on  land.^^  A  judgment  in  trespass  does  not  necessarily 
determine  the  title  to  the  property.'^^  The  personal  action  can 
not  be  made  to  test  the  title  of  the  property  as  between  conflict- 
ing claimants."^ 

§  2063.  Turning  out  cattle.  One  who  commits  a  trespass 
by  turning  cattle  out  of  an  inclosure  upon  the  public  lands,  can 
not  be  made  liable  to  the  owner  for  the  loss  of  the  cattle,  if  the 
owner  has  been  notified  to  take  care  of  them.*^^ 

S  2064.  Unlawful.  The  acts  alleged  must  be  essentially  acts 
of  trespass,  forcible  and  unlawful;  but  it  need  not  be  alleged  in 
so  many  words  that  the  entry  was  unlawful.^'* 

§  2065.  Who  may  maintain  action.  Any  person  seised  of  an 
estate  in  remainder  or  reversion  may  ])ring  an  action  under  it. 
notwitlistanding  any  intervening  estate  for  life  or  years.^'^  The 
{tlaintiff  is  not  entitled  to  recover  damages  for  a  trespass  qiiarc 
clausian  f regit,  alleged  in  his  complaint  to  have  been  committed 
on  his  own  land,  when  in  fact  the  trespass  was  committed  on 

47  Co.  Litt.  200  a,  b;  Crabbe's  Law  of  H.  P.,  §  2318  b;  Waterman 
V.  Saper,  1  Ld.  Raym.  737. 

48  Jacobs  v.  Seward.  L.  K.,  4  C.  P.  328. 
40  Daley  v.  City  of  St.  Paul,  7  Minn.  :inO. 

BO  Cowcnhovcn  v.  City  of  Hrooldyn,  3K  H.-irl).  D. 

61  Hrciinan  v.  (Ja.ston,  17  <";il.  372. 

r'2Hallcfk  v.  Mixer,  10  Cnl.  r)74;  70  .\iii.  !>('<•.  r..M ;  see  Nevada 
Co.  «fe  Sac.   ("anal   Co.  v.   Kidd,  37  Cal.  2H2. 

53  Story  v.   Uol.iiison,  32  Cal.  20r). 

B4  Van  Diusiii  v.  Yoniifr,  20  I?arl».  0. 

sn  Van  I»ciiscn  v.  ^■llllnL'.  20  Iiarl>.  0;  .Vycdcjv  v.  Raili-nad  Co., 
80  N.  (J.  321;  .Mayoi-,  I'lc,  v.  I. yon,  il'.i  <;a.  .'.77.  Itiil  lln-  iil.'iinlirf 
must  nlJcKe  and  inovr  that  Hit-  iii.juiy  U>y  wliich  In-  siirs  i^  an 
injm-y  to  llic  n'V<'r.si()n.  an<l  not  nicr.-ly  an  iiijnry  l<»  tlii"  possessory 
rlKJitH  of  tlie  tenant.  Ceer  v.  Fleming.  HO  Mass.  301;  »obb  v. 
Byenlte  fJrnnlte  Co.,  41   Mo.  .\\<\>.  <rl2. 


§^  ;.HH)ti-.^H)08  IDHMS    Ol-     (  ().\1  IM.A  1  N  IS.  lOlf) 

anotlior  piece  of  land/'"  An  action  i-aii  be  maintained  by  the 
mortgagee  of  real  estate,  to  recover  damages  for  wrongful  and 
fraudulent  injuries  done  to  the  mortgaged  property,  by  which 
the  security  of  the  mortgage  has-been  impaired/^ 

§  2066.  "  With  force  and  arms,"  "  broke  and  entered." 
Under  our  system  of  pleading,  the  words  "  with  force  and  arms, 
broke  and  entered,"  do  not  conline  tlie  proof  to  the  direct  and 
inmmediate  damage,  as  in  the  old  action  of  trespass,  and  the 
facts  being  clearly  set  out  in  the  complaint,  an  addition  of  these 
words,  was  held  to  be  surplusage.^* 

§   2067.   For  damages  for  Injuring  trees. 

Form  No.  525.  ' 

[Title.] 

The  plaintiff  complains,  ami  alleges: 

I.  Tliat  the  defendant,  on  the day  of , 

18.  .,  entered  upon  the  land  of  the  plaintiff,  in  the  county  of 

,  the  same  being  then  in  the  possession  of  the 

plaintiff,  and  did,  without  the  leave  of  the  plaintiff,  cut  down 

trees  [designate  number  and  kind  of  trees],  of 

the  value  of   dollars;  Avhereby  the  plaintiff  lost 

said  trees,  and  the  land  belonging  to  the  plaintiff  was  greatly 

damaged  and  lessened  in  value,  to  the  amount  of ;  . .  .  . 

dollars;  and  thereby  the  defendant,  by  the  force  of  section 
of  the  statute  of ,  forfeited  and  be- 
came liable  to  pay  to  the  plaintiff  treble  the  amount  of  said 
damages. 

[Demand  of  Judgment.] 

§  2068.  Action  can  be  maintained  as  soon  as  timber  is  cut. 
An  action  of  trover  may  be  maintained  against  a  trespasser  who 
is  cutting  timber,  as  soon  as  timber  is  cut.^^ 

CO  Doberty  v.  Thayer,  31  Cal.  140. 

07  Robinson  v.  Russell,  24  Cal.  407;  see,  further,  as  to  who  may 
maintain  the  action,  Colton  v.  Onderdonk,  69  id.  15.5;  .58  Am. 
Rep.  .5.50;  Willey  v.  Laraway,  64  Vt.  5.59;  Anderson  v.  Broom  Co., 
57  Mirh.  216;  Lawi-y  v.  T^awi-y,  88  Me.  4S2;  Ilcilbron  v.  Heinlen, 
72  Cal.  .^71;  Stevens  v.  Stevens,  96  CJa.  374. 

08  Darst  v.  Rush,  14  Cal.  81.  Allegation  of  damage  —  sufficiency. 
See  Malloiy  v.  Thomas,  98  id.  644;  Razzo  v.  Varni,  81  Id.  289. 

M  Sampson  v.  Hammond,  4  Cal.  184. 


1017  TRESPASS.  §§  20G9-2072 

§  2069.  Between  tenants  in  common.  At  common  law,  when 
one  tenant  in  common  destroys  the  subject  of  the  tenanc}',  tres- 
pass will  lie  at  the  suit  of  the  injured  party.**^  If  one  tenant 
in  common  destroy  the  thing  in  common,  as  if  he  grub  up  anfl 
destroy  a  hedge,  or  prevent  his  cotenant  of  a  fold  from  erecting 
hurdles,  trespass  lies.^'^  If  one  tenant  in  common  enters  upon 
his  cotenant,  and  ousts  him  of  his  premises,  trespass  quarc 
clausiim  f regit  lies  for  the  injury.^^  Hence,  an  action  will  lie 
for  injur}'  to  trees  standing  on  a  line  between  plaintiff's  and 
defendant's  lands,  whether  the  parties  be  regarded  as  tenants 
in  common  of  such  trees  or  not.*'^ 

§  2070.  Demand.  Where  trespassers  cut  wood  on  land  be- 
longing to  tiie  ijlaintiff,  and  sold  it  to  the  defendants,  who  were 
bona  Ude  purchasers,  it  was  held  that  no  previous  demand  was 
requisite  to  sustain  an  action  for  the  recovery  of  the  wood  or  its 
value.^ 

§  2071.  The  same  —  for  cutting  and   converting   timber. 
Form  No.  526. 
[Title.] 
The  ]jlaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18..,  at 

,  the  defendant  forcibly  broke  and  entered  upon 

plaintiff's  land  [the  same  being  then  in  jjossession  of  the  i)lain- 
tift'],  and  there  cut  down  and  carried  away  the  trees  and  tim- 
ber of  the  plaintiff',  of  the  value  of dollars,  and 

converted  and  disposed  of  the  same  to  his  own  use»  contrary 
to  the  statute,  etc.,  to  the  damage  of  the  plaintiff  in  the  sum  of 

dollars. 

[Demand  of  Judgment.] 

S  2072.  Action  lies.  An  action  for  trespass  lies  for  cutting 
and  carrying  away  timber,*^  though  the  land  be  not  inclosed.*'" 

«0Co.  Litt.  2fX>  a.  1):  rriil)1)(''s  Law  of  K.  I'..  §  L'.'US  h;  WattM-in.-iii 
V.   Soper,   1    1^(1.    Hnym.   T.jT. 

61  Browne  on  Ac-tions,  414;  Voyre  v.  Voycc,  (Jow,  2<il;  8  H.  & 
C.  2.^)7. 

«'-'7  fow.  2211. 

fii  Dubois  V.  HcMvrr,  2.'  N.  V.  VI?.:  S2  Am.  Iter.  ?,'1(\. 

c-t  Whitiiifin  (\.  &   S.   .M.  ("o.    V.  Tiitlc.    1    NCv.    I'M. 

Refill.  ro<le  Civ.   Pro..  S  T.','.',. 

«« Wfjls  V.  ITowcll.  in  .Tolms.  .".s.":  'l"oii:i w.-nnlii  II.  II.  Co.  V. 
Munger,  ."»  I)en.  2.">;  4!i  .\iii.   I>ic.  2.'!'.j, 


§§2073    2077  FUU.MS   OF    COMI'I.AINTS.  1018 

§  2073.  Actual  possession.  lu  actions  for  damages  for  in- 
jury to  real  property,  title  or  actual  possession  at  the  time  of 
the  injury  must  be  sliown.''^ 

•  s  2074.  Broke  plaintiff's  close.      It  is  not  necessary  to  state 
that  the  defendant  l)roke  the  plaint  ill's  close.*^^ 

S  2075.  Damages.  In  California  triple  damages  may  be  as- 
sessed for  cutting  and  carrying  away  trees,  etc."'"^  But  nothing 
in  section  733  authorizes  the  recovery  of  more  than  the  just 
value  of  the  timber  taken  from  uncultivated  woodland,  for  the 
repair  of  a  public  highway  or  bridge  upon  the  land,  or  adjoin- 
ing it.'^*'  The  damages  should  be  estimated  by  all  the  circum- 
stances and  the  purpose  for  which  such  trees  were  used.'^^  The 
measure  of  damages  is  not  the  value  of  such  trees,  as  for  wood, 
but  the  injury  done  to  the  land  by  destroying  them.'^^ 

S  2076.  Damages  —  treble.  To  entitle  to  treble  damages  under 
the  statute,  the  com])lainant  must  refer  to  the  act.'^^  in  actions 
for  waste,  when  treble  damages  are  given  by  statute,  the  de- 
mand for  such  damages  must  be  expressly  inserted  in  the  declara- 
tion, which  must  either  cite  the  statute,  or  conclude,  to  the 
damage  of  the  plaintiff  against  the  form  of  the  statute.'^'*  The 
complaint  must  also  aver  that  the  defendant  cut  them  know- 
ingly, willfully,  or  maliciously,  in  order  to  recover  treble  dam- 
ages.'^ Without  such  averment  the  plaintilf  may  recover  simple 
damages.''^ 

§  2077.  Executor,  Under  the  California  statute,  an  executor 
may  maintain  an  action  for  trespass  committed  upon  the  real 
estate  of  his  testator  in  his  lifetime.'^'^ 

«7  Gardner  v.  Heart,  1  N.  Y.  .528. 

68  Wells  V.  Howell,  19  Johns.  38.5;  and  see  Tonawanda  R.  R.  Co. 
V.  Munjrer,  5  Den.  2.59;  49  Am.  Dec.  239. 
60  Cal.  Code  Civ.  Pro.,  §  733. 

70  Oal.  Code  Civ.  Pro.,  §  7.34. 

71  Chipman  v.  Hibbei'd,  6  Cal.  102. 

72  Id. 

73  Brown  v.  Bristol,  1  Cow.  170.  As  to  ploadinj?  statutes,  see 
vol.  1,  §  .329. 

74rhi])iiiiiii  V.  Eiiicric,  3  C.nl.  283;  S.  C,  .5  id.  2.39. 

7''' Barnes  v.  .Tones,  ,51  Cal.  303. 

70  Id.;  Austin  v.  Mining  Co.,  72  Mo.  .5.35;  37  Am.  Rep.  440;  Alt 
V.  Crosrlose,  01  Mo.  Ai)p.  409;  Van  TToffni.-in  v.  Kendall,  17  N.  Y. 
Sujij).  71.3. 

"Code  Civ.   I'ro.,   §   1084;   Ilaiglit   v.    Green,   19   Cal.    11.3.     For 


I  2078,  InjxmctUm.     A  coiwf»Uiint  trhidi  ftete  out  a  caose  cd 
action  in  treKpam,  and  c  jC- 

tion,  i»  cf/rrec-tJ*    An  irjj.>.. ......  .........  .....,,.■..,....  --n- 

ing  deififidsinU  from  fftliin^  trees,  \rhere  the  qaemon  of  bound- 
ary iA  in  dj«put*;:  <r- 

iuWy  yT<AM<il  ihh  (ihi... ...,    , ,- .-:_     -- 

ttiat  they  Jiave  the  ri^it."^* 

is  2079.  Public  land*.     Prior  itomtmon.  of  pnblk:  lands  w^ill 
entitle  the  [X/iry;fe*or  to  rr.<  ^**' 

The  right  to  the  use  of  ^^  .     .  ,,   .  -  as 

between  miners  and  agriculturists,  ia  to  be  governed  by  th« 
rule  of  priority  of  appropriation-"^ 

I  2080.  Public  land*,  occupants  of.         A  Jt5 

of  public  Jajjd>;,  neither  j^rty  f;ari  claim  t;        .  .    ^w- 

ing  timber  thereon-  The  act  of  Congress  of  ilarch  2,  l>i31, 
prohibits  the  cutting  or    '  '  -'  on  the  public 

landi;.^*     xj.j^  statute  n..       ._  .       -,   '=  '>^  gettieii^  on 

public  land*  for  agricultural  purposes  yield  to  the  right*  of 
miners  has  legalize^;  '  '       '    -    -e  be  a  trespaiss,  and 

the  act  can  not  be  -  >n  to  ca^es  not  espe- 

cially provided  for.**     <fine  who  eiaims  public  land.ii  in  California. 

for  '         trees  or  -  '   '    '    -s  from  dig- 

gi;  ,  -  for  m .      .  -Q  show  pri- 

ority of  right  r>efore  the  land  was  located  for  mining  ptirposes.^ 

I  2081.  Who  may  maintain  the  action-        The  'Ut 

of  r  for  the  proj>erty  severed  f:  '.-e- 

ho.  .  *  is  in  fxnsseseion  of  the  p  ni 

which  the  property  was  severed,  if  he  holds  them  adver«:iy.  in 
good  faith,  under  claim  and  color  of  title.* 

averrnentg  of  comfilaint  by  execotoTR.  where  third  person*  wrong- 
fully ^rut  timber,  and  defemlant.s  afterwardj*  entered  and  removed 
It,  »ee  Halleck  v.  ilixer,  16  Cal.  574. 

'fifiaten  v.  Kieff,  7  Cal-  125.  JurifMiiction  to  enjoin  trewpaiw. 
See  Mandenhall  v.  Water  Co..  27  Orejr.  38:  Garrett  v.  Btehop. 
Id.  ?AU:  M«^-Brriwn  v.  Thomr»'«on,  25  Id-  5550;  42  Am.  St.  Rep.  a06. 

7»  BiKkel^-w   V.  ?>tH1.  5  Cal.  K*:  »ee  "  Injunction,"  posU 

f)"  <^irov«-r  V,  Hawl*;}-,  -5  Cal.  485. 

''I  Vup^en  V.  Sogpx,  22  Cal.  444. 

M  Wfimer  v.  I»wer7.  11  Cal.  K>4. 

M  Knsmlniifr  v.  Jlrlntire.  2ri  Cal.  '£fZ. 

»  Halle<  k  V.  Mixer,  16  Cal.  574;  nee  Nevada  Co.  *c  Sac.  Canal 


^^  vH)S'-v*-::i085  FOU.MS    Ol-    OU.Ml'LAINTS.  1020 

§  2082.  Trespass  quare  clausum  fregit.  In  trespass  quarc 
claiisiini  trcgit  it  is  inciunbent  on  the  plaintiil'  to  show  that  ho 
was  in  the  aetual  jiossession  of  the  ])renusos  at  the  time  of  the 
alleged  trespass,  and  the  defendant  may  prove  under  a  general 
denial  that  a  tenant  of  the  plaintilV  was  in  tlie  aclnal  posscssion.^^ 

S  2083.  The   same  —  for   treading   down    grain. 

I'onii  No.  ^2j. 
[TiTLH.] 

The  plaintiff  comi)lains,  and  alleges: 

I.  That  on  the    day  of    '.,   18..,  at 

the  defendant  entered  njwn  tiic  plaintiff's  lot 

[or  farm  |,  known  as   ,  and  trod  down  the  grain 

then  growing  thereon,  and  cut  down  certain  trees  [or  as  the 
case  may  be],  contrary  to  the  statute,  etc.,  to  the  damage  of 

the  plaintiff dollars. 

[Demand  of  Judgment.] 

§  2084.  Gist  of  the  action.  The  allegations  that  the  defendant 
unlawfully  and  willfully  permitted  said  sheep  to  be  herded, 
and  did  herd  the  same  upon  the  lands  of  which  the  plaintifE  was 
then  and  still  is  the  owner,  and,  in  a  subsequent  paragraph, 
tliat  defendant  herded  and  permitted  said  sheep  to  Ije  herded 
in  and  upon  the  above-described  barley  field,  constitute  the 
gist  of  the  action.^^ 

§  2085.  Herding  sheep.  The  rule  of  the  common  law  of  Eng- 
land, that  every  man  was  bound  to  keep  his  beasts  within  his 
own  close  under  the  penalty  of  answering  in  damages  for  all 
injuries  resulting  from  their  ranging  at  large,  never  was  the  law 
of  California,  the  statutes  of  1850,  pages  131-219,  being  directly 

Co.  T.  Kidd,  37  id.  282;  see  Maine  Boys  Timnel  Co.  v.  Boston 
Tunnel  Co.,  37  id.  40;  Raffetto  v.  Flori,  50  id.  3(i3. 

86  Uttendorffer  v.  Saegers,  50  Cal.  49G;  see  S  ,  ante-  Where 
the  alleged  trespass  is  one  constituting  .a  iK'rmanent  and  necessary 
injury  to  the  market  value  of  the  plaintiff's  fee  in  the  land 
Ti-esi)assed  on,  the  failure  of  the  declaration  to  allege  that  the 
plaintiff  wa.s  in  possession  of  the  land  at  tlie  time  of  the  trespass 
does  not  render  the  deelaration  demurrable.  .Jacksonville,  etc., 
1{.  R.  Co.  v.  Griffin.  33  Fla.  002. 

S7  Logan  v.  Gedney,  38  Cal.  .579;  see  Waters  v.  Noss,  12  id.  535; 
73  Am.  Dec-,  cr;!;  Comerford  v.  Dnpuy,  17  Cal.  308;  Richmond  v. 
Sac.  Viil.  K.  li.  Co.,  18  id.  355;  and  see  Hittell's  Codes  and  Statutes 
of  California,  par.  15,  820  et  seq- 


1021  TEESPASS.  §§  2086,  2u»7 

in  conflict  with  and  repugnant  to  that  rule;  so  of  the  other  suh- 
sequent  acts  on  the  same  subject.^ 

s  2086.  Lawful  fences.  A  party  can  not  recover  for  injuries 
done  by  cattle  breaking  into  plaintitfs  close  unless  the  land 
entered  be  inclosed  by  a  fence  of  the  character  described  by 
statute,  or  at  least  by  an  inclosure  equivalent  in  its  capacity  to 
exclude  cattle  to  the  statutory-  fence.**^ 

2087.     For  damage  by  trespassing  cattle,  under   California 
statute  of  March  7,  1878. 

Form  Xo.  328. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  during  all  the  times  hereinafter  mentioned,  he  was 
and  now  is  the  owner,  and  lawfully  in  possession  of  all  that 

certain  real  estate  situated  in   township,  county 

of ,  state  of  California,  and  described  as  follows: 

II.  That  during  all  of  the  time  between  the day  of 

,  18...  and  the   day  of   , 

18.  .,  the  defendant  was  the  owner  in  possession  of,  and  charge- 
able with  the  care  of,  certain  animals,  to-wit,  sheep. 

III.  "^I'hat  at  divers  times  between  said  last-mentioned  dates 
said  animals  ran  and  trespassed  upon  said  lands,  ate  up,  in- 
jured, and  destroyed  the  grain,  hay,  and  verdure  being  and 
growing  thereon. 

IV.  That  in  consequence  of  said  animals  so  running,  tres- 
passing, eating  up,  injuring,  and  destroying  the  said  grain, 
hay,  and  verdure  which  was  then  upon  said  land,  plaintiif  has 
been  damaged  in  the  sum  of dollars. 

[Demand  of  Judgment,  j"*^ 

88  See  Wators  v.  Moss,  12  Cal.  53.'»;  73  Am.  Dec  ."fil;  Conierfonl 
V.  Dupuy,  17  id.  308;  Kk-liniond  v.  Sac.  Vul.  U.  K.  Co.,  IS  id.  \i"y, 
I.o^'an  V.  Gfdney,  38  id.  .'>79. 

60  Conierford  v.  Diipiiy,  17  Cal.  3<)S.  A  foniplaiiit  i!i  an  iictinn 
to  recover  for  injuries  l»y  tresi)assinK  animals  to  l;ni<ls,  wiiicli 
are  not  alleged  to  liave  been  inclosed,  does  not  stale  a  cansf  of 
action,  if  it  is  not  allej;ed  that  tlie  trespass  was  insti^'aled  l>y  flie 
defendant,  or  tliat  lie  li:id  notice  tiiereof.  M.-rrilt  v.  Hill.  KW 
C;il.  1K4.  Compan-  Halin  v.  <;aiTalt.  C!)  id.  U7.  a  <l.Mision 
^roverned  by  a  lo<;il  l;i\v  applicjiblc  to  a   particular  county  alone. 

w  The  sufJicienc.v  of  tlir>  above  form  was  sust;iinfd  in  Fabt-r  v. 
♦^'athrln,  1  West.  Coast  Itej).  871.  .\ction  for  damages  by  tres- 
passing animals.  «n«b'r  statute  of  South  Hakola  (Comp.  Laws, 
§  5o<J9).     See  Tanderuii  v.  Hansen.  ."»  So.   ]»ak.   HW. 


ijij  •,>0S8-2001  FOKMs  or  coMri-MNTs.  1032 

S   2088.   For  removal  of  fence. 

i-'onn   No.  3^9. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.  That  on   the    clay   of    ..,   18..,   at 

,  the.  (lel'endant  forcibly  broke  and  entered  upon 

the  plaintiff's  laud,  and  took  down  a  I'ence  standing  upon  said 
land  and  removed  the  same,  and  also  then  and  there  erected 
another  fence  on  said  land,  and  also  then  and  there  disturbed  the 
plaintiff  in  the  use  and  occupation  of  said  land,  and  prevented 
him  from  enjoying  the  same  as  he  otherwise  woidd  have  done, 

to  the  damage  of  the  plaintiff dollars- 

[Demand  of  Judgment.] 

§   2089.   For  trespass  on  chattels. 

Form  No.   530. 
[Title.] 
The  plaintiff  complains,  and  alleges: 

I.  That  on  the    day  of    ,   18..,   at 

the  defendant  unlawfully  took  from  the  posses- 
sion of  the  plaintiff,  and  carried  away  [describe  the  goods],  the 
property  of  the  plaintiff',  and  still  unlawfully  detains  the  same 
from  the  plaintiff  [or  where  the  possession  to  the  property  was 
regained,  and  unlawfully  detained  the  same  from  the  plaintiff 

for  the  space  of days]  to  the  damage  of  the  plaintiff 

dollars. 

[Demand  of  Judgment.] 

§  2090.   Averment  of  special  damage. 

Form  No.   531. 
That  by  reason  of  such  unlawful  taking  and  detention  of  said 
property,  the  plaintiff  was  compelled  to  pay,  and  did,  on  the 

...1....   day  of    ,  18..,  at   ,  pay 

dollars  to  procure  the  return  of  the  same,  and 

also    dollars  for    storage,    and  sustained  other 

injury. 

§  2091.  The  lessor  of  personal  property,  such  as  sheep,  can 
not  maintain  trespass  or  trover  for  an  injury  done  to  the  prop- 
erty by  a  stranger  during  the  term  of  the  lease,  and  while  the 
lessee  is  in  the  actual  possession  of  the  ■'iropcrtv.''^ 

81  Trispony  v.  Orr,  49  Cnl.  012.  Baro  possession  alone  of  a 
chattel  is  sufficient  title  or  rijiht  to  maintain  tlie  action  against  a 
wrongdoer.  Sickles  v.  Gould,  .51  How.  Pr.  22;  Wheeler  v.  Lawson, 
103  N.  y.  40;  Laing  v.  Nelson,  41  Minn.  521. 


1023  TRESPASS.  §§  2092-3094 

§  2092.  For  malicious  injury  to  property. 

Form  No.   532. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.   That  on  the    day   of    ,   18..,   at 

,  the  defendant  willfully  and  maliciously  intend- 
ing to  injure  the  plaintiff,  cut,  broke,  and  mutilated  certain 
[designate  what],  the  property  of  the  ])laintiff,  of  the  value 

of dollars,  and  greatly  injured  them,  so  that  the 

plaintiff  wa.s  compelled  to  expend  dollars  in  re- 
pairing the  same,  to  his  damage   dollars. 

[Demand  of  Judgment.] 

§  2093.  For  entering  and  injuring  a  house  and  goods  therein. 

Form  No.  533. 

[Title.] 

The  plaintiff  complains,  and  alleges: 

I.   That  on  the    day  of    ,   18..,  at 

,  the  defendant,  A.  B.,  entered  into  the  plaintiff's 

house,  No street,  in  the  city  of  , 

in  this  state,  and  unlawfully  broke  and  injured  the  doors  and 
walls  thereof  [or  other  injury  to  house],  and  took  and  carried 
away  [enumerate  articles],  the  property  of  the  plaintiff,  and 
converted  and  disposed  of  the  same  to  his  own  use,  to  plaintiff's 

damage dollars. 

[Demand  of  Judgment.]  ^^ 

§  2094.  Action,  transitory  and  local.  Where  the  writ  Men- 
tions a  trespass  with  force  and  arms  upon  the  storehouse  of 
the  plaintiff,  and  a  sei/Aire  and  destruction  of  goods,  it  covers 
a  transitory  as  well  as  a  local  action."^  Actions  of  trespass, 
except  those  for  injury  to  real  property,  are  transient  in  their 
character.^* 

02  For  tlie  .Tllcuntioiis  in  n  foiniil.-iint  .tu:v'.iis(  n  pcisoii  wlio  slops 
Jn  front  of  iilaintifl"s  liouso  mid  uses  jil)usivi-  Ijiiimiiiu'c  tnw.-iitls 
him,  Sf'o  Adains  v.   Hiv<-rs,  11    H:irl).  lilio. 

MMoKcnna  v.  Fisk,  1    IIow.  d'.  S.i  -Jll. 

94  Uowo  V.  Wilson,  1  Dili.  1S1;  <"mk'<'  v.  .FcCfrii-s.  ilniiiist.  Kilt. 
TTndcr  tli««  provisions  of  Die  Now  Yorlc  Codo  of  Civil  rroccdnrt'. 
neither  tn'si)}iss  npon  real  proiiorly.  nor  trover,  Is  ji  loc.-il  iictlon. 
Polley  V.  Wilklsson,  5  Civ.  Pro.  Hep.  135;  Abb.  Sel.  Cas.  373. 


I 


I 


§§  t.HV.K5-'.?0!)7  KOUMS   Ol'-   (•OMPLAI>^TS.  1024 

§  2095.  Joinder  of  parties.  It  is  unnecessary  to  join  as  de- 
fendants in  an  action  i'or  damages  for  trespass,  all  persons  who 
unite  in  committing  it;  all  or  any  may  be  sued.'"' 

§  2096.  Officer  without  process.  An  officer  without  process 
wiio  puts  a  uerson  in  i)ossession  as  receiver  commits  a  trespass.^^ 

§  2097.  Trespass  to  the  person.  Where  a  person  with  a  crowd 
of  others  entered  the  promises  of  plaintiff,  knowing  that  ad- 
mission had  only  been  obtained  by  an  action  of  violence  by 
another  person  in  the  crowd,  it  was  held  that  he  was  liable  as 
a  trespasser.^^  But  no  action  lies  for  a  trespass  to  the  person 
wliich  is  neither  intentional  nor  tlie  result  of  negligence.^^ 

95  Mandlebaum  v.  Russell,  4  Nev.  551.  The  complaint  in  an 
action  to  recover  for  a.  joint  trespass  against  individuals  who 
are  husband  and  wife,  which  does  not  allege  their  marital  relation, 
is  not  demurrable  for  a  failure  toi  state  why  she  is  joined  as  a 
defendant  with  him.    Watere  v.  Dumas,  75  Cal.  563. 

66  Rowe  v.  Bradley,  12  Cal.  226. 

»7  Chandler  v.  Egan,  28  How.  Pr.  98. 

88  Stanley  v.  Powell  (1891),  1  Q.  B    Div.  86. 


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